Legal Docket - Life and the Constitution

MARY REICHARD, HOST: It’s Monday, December 6th, 2021. You’re listening to The World and Everything in It and we thank you for listening in. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. We are kicking off today our December Giving Drive with a goal to repeat what we did last year and it’s ambitious. We will need your help and God’s blessing on our efforts.

Let me begin with a word of encouragement from last month. As we told you before November ended, we did hit our goal with all-new donors, using all the match, and the bonus, and then some

REICHARD: I remember saying that and asking on that last day of the new donor drive, hey don’t be discouraged from giving if you hear we hit the goal and then decide not to, please give anyway and put an exclamation point on the November campaign. And I’m so happy to say it was a thundering exclamation point—our biggest day ever.

EICHER: Truly a vote of confidence from you and if you were a first-time giver this year—thank you. I think you’ll be happy to know that we exceeded the number of first-time donors over last year. We had slightly fewer than 700 new donors last year and the number grew by more than 20 percent this year, so again, thank you and welcome aboard. We couldn’t do this work without your support.

That is a great jolt of encouragement as we begin our December Giving Drive this year. I’ll invite you to track the progress online at WNG.org/donate and pray for the success.

REICHARD: Right, we’re excited and a little nervous at the same time. We do need your help in keeping this mission going, but also expanding it, and we’ll talk during the month about the work we’ve been doing with news reporting and opinion for adults and families with students to help more and more people navigate this world with Biblically objective journalism that informs, educates, and inspires. We want to carry that on and we can only do it as you help us do it. So please if you can support us, visit WNG.org/donate and make as generous a gift as you can in support of our work.

EICHER: Well, let’s do that work. It’s time for Legal Docket.

REICHARD: Let’s.

AUDIO: Hey, Hey, Ho, Ho, Roe v Wade has got to go...Hey, Hey, Ho, Ho Roe v Wade has got to go…

WOMAN: I’m here today because I think abortion hurts both the unborn and it hurts women.

WOMAN: I’m here today because I believe a woman’s right to choose her future, her destiny, her reproductive healthcare, is a fundamental right.

EICHER: Emotions high outside the Supreme Court last Wednesday, the day the nine justices of the U.S. Supreme Court heard oral argument in a direct challenge to the court’s abortion precedents.

Inside the courtroom, the usual procedure and call to order:

ROBERTS: We will hear argument this morning in Case 19-1392, Dobbs versus Jackson Women's Health Organization.

The case confronts what the Supreme Court did in 1973 when it decided Roe v Wade. The court held that states cannot ban abortion before viability. That’s considered the time when a child is capable of living outside the womb.

Later in Planned Parenthood v Casey the court affirmed Roe and added a new standard for courts to determine whether a state abortion law “unduly burdens” a woman who seeks to abort prior to viability.

REICHARD: A law from Mississippi passed in 2018 now challenges Roe and Casey. It bans abortions after 15 weeks gestation, before viability, which is considered to be around 24 weeks. The law has exceptions for the mother’s life or fetal abnormality. But it’s in direct conflict with court precedent.

EICHER: So Mississippi’s only licensed abortion business and one doctor sued to challenge the law.

The only legal question here is whether that law is unconstitutional.

REICHARD: Three lawyers argued the case. We’ll hear from all three, but begin first with Scott Stewart. Stewart argued on behalf of Mississippi in defense of its law and against abortion:

STEWART: Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise. For 50 years, they've kept this Court at the center of a political battle that it can never resolve.

Later, abortion facility lawyer Julie Rikelman argued against Mississippi:

RIKELMAN: Mississippi's ban on abortion two months before viability is flatly unconstitutional under decades of precedent. Mississippi asks the Court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will.

Rikelman gave three reasons why the court shouldn’t overturn Roe and Casey. One, stare decisis, meaning, stand by things already decided. Two: those decisions prevent the state from commandeering a woman’s body to carry a child to term, and three:

RIKELMAN: ...eliminating or reducing the right to abortion will propel women backwards. Two generations have now relied on this right, and one out of every four women makes the decision to end a pregnancy.

Rikelman said this pre-viability abortion ban hurts the poor and the ignorant. Those who can’t afford contraception or don’t even recognize they’re pregnant.

A third lawyer who also argued against the abortion law: US Solicitor General Elizabeth Prelogar, on behalf of the federal government. She warned of severe consequences should the court overrule Roe and Casey:

PRELOGAR: Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest.

Women who are unable to travel hundreds of miles to gain access to legal abortion will be required to continue with their pregnancies and give birth, with profound effects on their bodies, their health, and the course of their lives. The Court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society.

In a nutshell, on the pro-life side: abortion isn’t in the Constitution. Roe and Casey made bad law and they’ve kept the court in a political battle it should not have entered into in the first place. Therefore, the court ought to overturn.

On the pro-choice side: precedent matters. The court must stand by it. A woman has a right to her own body and a fundamental interest to participate in society, free from pregnancy.

Some debate centered around what is or isn’t in the Constitution. Justice Sonia Sotomayor waved aside Mississippi’s argument that abortion isn’t in there. She references a case from 1803, Marbury v Madison.

SOTOMAYOR: Counsel, there's so much that's not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that's what was intended.

Justice Stephen Breyer wondered about harm to the Court itself if it overturns precedent:

BREYER: To overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court's legitimacy beyond any serious question.

Yet as other justices pointed out, the court has overturned many other bad decisions.

Justice Brett Kavanaugh listed several of them, including Plessy v Ferguson in 1896. That decision said separate but equal education for black and white students didn’t violate the Constitution.

Then 58 years later in Brown v Board of Education, the court said it did.

Listen to his exchange with Rikelman, lawyer for the abortion facility:

KAVANAUGH: ...why then doesn't the history of this Court's practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and not stick with those precedents in the same way that all those other cases didn't?

RIKELMAN: Because the view that a previous precedent is wrong, Your Honor, has never been enough for this Court to overrule...

Rikelman went on to say a special justification is needed to overturn precedent. Just being wrong isn’t enough. Here, Mississippi hasn’t mentioned any special justification.

Justice Kavanaugh clarified a point made by Stewart for Mississippi:

KAVANAUGH: The Constitution’s neither pro-life nor pro-choice on the question of abortion, but leaves the issue to the people of the states or perhaps Congress to resolve in the democratic process.

To require the Supreme Court to pick sides in such a contentious social debate is the core problem, he said.

Justice Samuel Alito first brought up the unborn person’s interest in having a life, and that that interest doesn’t change from pre-viable to post-viable.

But Rikelman grounded her argument almost wholly in precedent.

Perhaps she understood she can’t convince certain justices that unborn life isn’t worthy of protection. So she emphasized how women have come to rely on Roe and Casey. That’s not changed over the past half century.

For Justice Sonia Sotomayor, one thing that has changed is who sits on the Supreme Court.

She aimed this observation at her fellow justices:

SOTOMAYOR: The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsors said we're doing it because we have new justices on the Supreme Court. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

Stewart for Mississippi answered that if the court doesn’t want to look political, it should stay Constitutional in its decisions. Stare decisis analysis can’t honestly apply here, because one of the analytical factors is that the case law is “workable.”

But Roe and Casey haven’t worked. Nobody even knows what “undue burden” means.

Stewart also brought up medical knowledge and advancements in understanding the lives of the unborn.

Justice Sotomayor:

SOTOMAYOR: What are the advancements in medicine?

STEWART: I think it's an advancement in knowledge and concern about such things as fetal pain, what we know the child is doing and looks like and is fully human from a very early --

SOTOMAYOR: You know --

STEWART: I'm sorry.

SOTOMAYOR: -- a gross minority of doctors who believe fetal pain exists before 24, 25 weeks, it's a huge minority and one not well founded in science at all. So I don't see how that really adds anything to the discussion.

Side note here: in an online discussion, law professor Sherif Girgis pointed out that reducing fetal pain isn’t the strongest argument, because states can easily require the unborn be anesthetized prior to causing death.

Justice Sotomayor said this is really just a religious debate. Then she compared the unborn to brain dead people:

SOTOMAYOR: There's about 40 percent of dead people who, if you touch their feet, the foot will recoil. There are spontaneous acts by dead brain people. So I don't think that a response by a fetus necessarily proves that there's a sensation of pain or that there's consciousness.

Surmising about fetal sensation or the court’s legitimacy didn’t appear to sway the other justices.

Legal doctrine captured their interest. Such as whether viability is a legitimate legal line to draw.

Chief Justice John Roberts:

ROBERTS: Because viability, it seems to me, doesn't have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?

Another side note about gestational time: Washington Post fact checkers concluded in 2017 that the United States is one of “only seven countries that allow elective abortions after 20 weeks of pregnancy.”

Those countries include North Korea, China, Vietnam, Canada, Singapore, and the Netherlands.

Chief Justice Roberts cast about for a way to uphold both Roe and Mississippi’s 15 week ban. But that didn’t seem to attract a majority of justices, and to do so would gut Roe’s viability line anyway.

To my mind, Justice Amy Coney Barrett had the most novel take.

She acknowledged that an unwanted pregnancy infringes on a woman’s bodily autonomy. But that’s of limited duration: nine months of pregnancy, versus the decades long obligations of parenting.

Barrett points to Safe Haven laws in every state that prevent parents from landing into legal trouble for voluntarily giving up a newborn. What are these laws? Basically they’re drop boxes for babies. Parents who can’t handle the burden of parenthood can abandon their responsibility legally, so long as they place the child into one of these safe havens.

BARRETT: So it seems to me, seen in that light, both Roe and Casey emphasize the burdens of parenting, insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women's access to the workplace and to equal opportunities. It's also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy. Why don't the Safe Haven laws take care of that problem?

Because, Rikelman answered, pregnancy makes unique demands on women and their ability to work. Then her legal counterpart Prelogar went further as to what women don’t want:

PRELOGAR: ...not being forced to endure childbirth and to have a child out in the world...

That’s a new one for me: that a woman may not want to “have a child out in the world.”

Prelogar for the government warned that if the court throws out these precedents, other rights could be undone, like contraceptive use and same-sex marriage. Those decisions also came about under the analysis under the “right to privacy”—words you will not find in the text of the Constitution.

But Stewart for Mississippi assured the court that those decisions aren’t the same.

National Review noted that progressives have changed their arguments over time. Under Roe, it was the right to privacy; under Casey, it was personal autonomy; now in Dobbs, it’s equality under the law, for women to be able to participate in the workplace on equal footing with men. But this idea that we “force” women to remain pregnant is odd; it’s the nature of a biological process at work, much like digestion. You eat, you digest. No coercion involved in it. Doing what bodies are designed to do.

One brief attached images of unborn children. The doctors who filed that brief pointed out that medical science moves viability to earlier and earlier in pregnancy. Just last year, a boy was born in Alabama at just 21 weeks gestation and today is 17 months old. So a viability “line” is arbitrary.

Mississippi needs 5 votes to win. Even if it does, abortion won’t necessarily end across the nation. The matter is more likely to return to the individual states. Some states will protect abortion up to the moment of birth. Other states will protect the unborn down to the moment of conception.

The nine justices are only human, too. They’ll be under enormous pressure over the next several months.

And that’s this week’s Legal Docket.

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