Pro-lifers hopeful “Dobbs” will oust “Roe”
In the oral arguments for Dobbs v. Jackson, justices discuss abandoning court precedent on abortion
Around 9 a.m. on Wednesday morning in Jackson, Miss., about 20 pro-life advocates stood praying in a circle near the parking lot of Jackson Women’s Health Organization, the state’s last open abortion facility. On another side of the building, former Jackson pregnancy center director Barbara Beavers walked back and forth, holding a sign that read, “Pray to end abortion.” She wore silver earrings shaped like baby feet.
That same hour in Washington, D.C., the Supreme Court gaveled in for oral arguments in the biggest abortion-related case since 1992.
“There’s a war,” said Beavers, reflecting on the day’s hearing. “We’re asking the Lord for a miracle. He is the God of miracles.”
In nearly two hours of arguments over Dobbs v. Jackson Women’s Health Organization, a case regarding a pro-life Mississippi law, the justices on Wednesday hit on hard questions underlying the country’s decades-long battle over abortion. While the court’s liberal justices voiced concerns about overturning court precedent, questions from other justices implied a willingness to reverse faulty past decisions.
In his opening remarks on behalf of Mississippi, state Solicitor General Scott Stewart took aim at previous Supreme Court cases that established a right to abortion up to the point in pregnancy when a baby can survive outside the womb. “Roe v. Wade and Planned Parenthood v. Casey haunt our country,” said Stewart, noting those cases have kept the court at the center of a political battle by promising a right to women that the U.S. Constitution does not mention. Stewart encouraged the court to “overrule Roe and Casey” and uphold Mississippi’s law, which protects unborn babies from abortion after 15 weeks of gestation.
On the other side, attorney and Center for Reproductive Rights director Julie Rikelman, arguing on behalf of the Jackson abortion facility, said Mississippi’s law goes against “decades of precedent.” Eliminating or reducing abortion access, she said, would “propel women backwards” by requiring them to continue unwanted pregnancies.
U.S. Solicitor General Elizabeth Prelogar warned of the “severe and swift” consequences of reversing the court’s past abortion rulings: “The court has never revoked a right that’s so fundamental to so many Americans and so central to their ability to participate fully and equally in society.”
The liberal justices showed their own concern about undermining Roe and Casey. Justice Stephen Breyer repeatedly urged everyone to read the section in the Casey decision about stare decisis, the principle of ruling according to previous court precedent.
Justice Sonia Sotomayor took a similar tone: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked. “I don’t see how it is possible.”
But Justice Brett Kavanaugh, who is Catholic but whom some pro-lifers see as somewhat of a wildcard on the abortion issue, listed off numerous cases in which the court had bucked stare decisis, including race-related cases. “If the court had done that in those cases … the country would be a much different place,” he said. “If we think that the prior precedents are seriously wrong, if that, 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?”
He also took issue with Prelogar’s argument that the viability standard—allowing states to restrict abortion after a baby is capable of surviving outside of the womb, typically considered to be around 24 weeks—balances the interest of mother and child. “You can’t accommodate both interests. You have to pick. That’s the fundamental problem,” said Kavanaugh. Citing the pro-life position in a question to Prelogar, he asked, “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?”
Conservative Justice Samuel Alito emphasized the ever-changing standard of viability but the consistent interests of the unborn baby: “The fetus has an interest in having a life, and that doesn’t change, does it, from the point before viability to the point after viability?”
Pro-lifers have questioned whether Chief Justice John Roberts would vote in favor of Mississippi’s law—in a case last year, he cast a disappointing vote against a pro-life law based on past court precedent. But his questions on Wednesday also revealed skepticism about the viability standard.
“If you think that the issue is one of choice ... viability, it seems to me, doesn’t have anything to do with choice,” he said. “If it really is an issue about choice, why is 15 weeks not enough time?” That cutoff in the Mississippi law, he said, is not a dramatic departure from viability and actually matches the standards set by a vast majority of other countries. Roberts noted that the United States’ viability standard puts it in company with countries like China and North Korea.
“This oral argument was remarkable,” said Steven Aden, chief legal officer for Americans United for Life, after the hearing ended. “It’s the argument we should have had decades ago.” In his estimation, the court touched on most of the big questions about abortion, and that discussion seemed to show a tilt among the justices toward a favorable ruling for Mississippi: “If the argument itself predicts which way a majority of the justices are likely to go, my money is on the court either overturning Roe or seriously calling it into question in this decision.”
—with additional reporting from World Journalism Institute graduate Stephanie Morton in Jackson, Miss.
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