Solicitor General Stewart’s eloquent case for why the Constitution is neutral on abortion

By Dave Andrusko

Near the beginning of last week’s fascinating oral arguments in Dobbs v. Jackson Women’s Health Organization, Mississippi Solicitor General Scott Stewart, in responding to a question from Justice Brett Kavanaugh, outlined a core argument why his state’s law protecting unborn babies after 15 weeks is constitutionally sound:

JUSTICE KAVANAUGH: And as I understand it, you’re arguing that the Constitution is silent and, therefore, neutral on the question of abortion? In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process? Is that accurate?

MR. STEWART: Right. We’re — we’re saying it’s left to the people, Your Honor.

Solicitor General Stewart re-emphasized this point in his final emphatic declaration:

Justice Kavanaugh, you had it exactly right when you — when you used the term scrupulously neutral. I think that’s a very good description of what we’re asking for here. I think it’s the problem and the value that has evaded the Court and will continue to evade this Court under Roe and Casey, but that is exactly right.

Neutrality is, of course, the last thing pro-abortionists want. They fervently wish the Court to maintain its thumb on the scale of justice, all in the name of maintaining fidelity to “precedent”—stare decisis.

But why? Justice Kavanaugh observed that the justice have often overturned precedent—he cited many examples—and then asked Julie Rikelman, counsel for the plaintiffs,

JUSTICE KAVANAUGH: I think the other side would say that the core problem here is that the Court has been forced by the position you’re taking and by the — the cases to pick sides on the most contentious social debate in American life and to do so in a situation where they say that the Constitution is neutral on the question of abortion, the text and history, that the Constitution’s neither pro-life nor pro-choice on the question of abortion, and they would say, therefore, it should be left to the people, to the states, or to Congress. And I think they also then continue, because the Constitution is neutral, that this Court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life, but, because, they say, the Constitution doesn’t give us the authority, we should leave it to the states and we should be scrupulously neutral on the question and that they are saying here, I think, that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue. So I think that’s, at a big-picture level, their argument. I want to give you a chance to respond to that.

Rikelman responded

Because the view that a previous precedent is wrong, Your Honor, has never been enough for this Court to overrule, and it certainly shouldn’t be enough here when there’s 50 years of precedent. Instead, the Court has required something else, a special justification. .. . And, in fact, there is nothing different [since the 1992 Planned Parenthood v. Casey decision].

To be fair, Ms. Rikelman is not saying that nothing has changed in 30 years. Pressed, she no doubt would have acknowledged (however grudgingly) that there has been amazing breakthroughs in fetal medicine; in the greatly improved status of women in the professions; in the proliferation of Safe Havens (located typically at an EMS station, fire station, or hospital) for women to place a newborn child without question or fear of prosecution; even, perhaps, a greater appreciation for the states “compelling interest” in protecting unborn children (e.g., “fetal life”) which the Court perfunctorily mentions in every abortion case.

What she is saying is there “nothing new under the sun” with respect to the underlying case for abortion. This evades the fundamental question: whether a decision could (or should) ever be reversed because it was wrong from the beginning!

Justice Samuel Alito tried repeated to get an answer from Solicitor General Elizabeth Prelogar whether if Plessy v. Fergusson—the 1896 decision that upheld “separate but equal”— “had come before the Court in 1897, should it have been overruled or not?”

 She evaded giving a direct answer. Justice Alito tried again.

I still don’t have your answer clearly. Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the Court is called upon to consider whether it should be overruled? Yes or no? Can you give me a yes or no answer on that?


She finally said “I think it should have been overruled,” but buried her response in qualifiers.

I would have loved for one of the justices to ask, point blank, whether Rikelman or Prelogar found in the 14th Amendment’s protections against the deprivation of “liberty” without due process of law the “right” to abort a baby up until birth. That’s the law now.

One other item. As Ramesh Ponnuru observed 
when Justice  Alito asked Rikelman “whether it can ‘said that the right to abortion is deeply rooted in the history and traditions of the American people,’ she therefore answered yes.” She based that confident assertion on Justice Blackmun’s conclusion,  which was based “largely on one researcher, Cyril Means Jr., whose work has been thoroughly discredited,” Ponnuru wrote.  

Roe’s history was always dubious, as the winning legal team in the case understood. The evidence that has come out since then has done far more to discredit than to support its assertions. The right to abortion is not deeply rooted in America’s history or tradition. In the world of legal advocacy of abortion, on the other hand, misrepresenting that history is a very deeply rooted tradition.