I’m generally an agnostic about whether oral arguments in court are either persuasive or predictive of the outcome of the case. In many cases, the judges have already made up their minds and are using the oral arguments to try out their theories of the case or to make a point with a fellow judge.
But the oral arguments in the Dobbs v. Jackson Women’s Health Services case were interesting in many ways, so I’d like to point out a few things. Remember, the Dobbs case involves a Mississippi law that bans abortions after 15 weeks, which is clearly unconstitutional under the current standards set in Roe v. Wade and Planned Parenthood v. Casey. This issue before the Court was whether those cases should be overruled, sustained, or adapted.
Some Points of Law
The utter lack of any grounding of Roe/Casey in the text or history of the Constitution couldn’t have been more clear in the oral arguments. Although it’s certain that there are rights that are not specifically enumerated in the Constitution, these rights have a grounding in the history of our nation and natural law. But the basis of a constitutional right to abortion is so non-existent that the advocates have to scramble and search for one, and they have never settled on one that satisfies even themselves.
If you can’t come up with a consistent and coherent argument for a constitutional right, that’s a pretty good indication that there isn’t one.
There was obviously a lot of discussion of stare decisis — what are the standards for deciding whether to overrule a case. This was really the heart of the abortion advocates’ argument. They repeatedly maintained that Casey definitively resolved this and there was no reason to revisit it.
That’s a strange argument, and it was challenged by several of the justices. Just because a precedent has stood for a long time, or has been upheld before, does that really mean that it can never be overruled – even if it was wrong from the beginning? Justices Kavanagh and Alito punctured that balloon very adeptly, pointing out numerous cases where the Court has overruled long-standing precedents that were wrong from the moment they were handed down. Brown v. Board of Education is the most prominent example of the Court correcting prior errors, but there are numerous others. Nobody offered a rational reason to treat Roe/Casey as an untouchable precedent.
The focus of a lot of the argument was on the viability line, which is the key moment for the regulation of abortion under Roe/Casey. The question is whether that is a workable, rational and principled standard. The abortion advocates defended this with great tenacity, but they never really said why it is required from a constitutional perspective. It has some basis as a concept in medicine, but as a matter of law it is entirely arbitrary. It has no more inherent validity than any other line a legislature might draw – or, for instance, the Supreme Court did when it drew lines at the first and second trimesters of pregnancy in Roe.
That argument only highlighted the essential point being made by Mississippi – the regulation of abortion, and the balancing of competing interests, is quintessentially a legislative task, not a job for judges.
The worst moments were from Justice Sotomayor. Her demeanor was aggressive and she appeared angry that the case was even before the Court. She also said the single dumbest thing of the oral arguments, when she asked the attorney from Mississippi: “How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”
This is a deeply stupid argument, and it is hard to believe that a person in her position could possibly believe it. On the other hand, since so many of her comments were essentially Planned Parenthood talking points, it’s possible that she does believe it. How sad it is for a person to be so far in the grips of ideological falsehoods.
It also wasn’t the only stupid argument by Justice Sotomayor. She argued that access to abortion is essential because poor women can’t afford contraceptives. Perhaps she’s never heard of all the ways that the federal government has made sure that contraceptives are available to people free of charge – like Medicaid, Title X federally-funded family planning programs, and mandated contraceptive coverage under the Affordable Care Act. Again, it’s appalling that a Supreme Court justice could be so ignorant (which is the most charitable interpretation).
She also seemed utterly ignorant of medical and scientific advances since Roe. Has she never seen a sonogram of an unborn child? She even offensively compared the pain response of an unborn child to the involuntary movement of a corpse. This was a perfect illustration of how abortion ideology corrupts the mind into dehumanizing unborn children.
Another surprisingly dumb argument was made by Justice Breyer. He passionately spoke about the value of Roe/Casey as precedent, and even turned professorial by inviting everyone to read the decision in Casey (which is strange, since everyone in the courtroom had certainly done so many, many times). But he also said something that is just astonishing for its lack of self-awareness, when he said that in Casey “the country, for better or for worse, decided to resolve their differences by this Court laying down a constitutional principle, in this case, women’s choice”.
Really? I can’t recall the referendum when “the country” decided to authorize the Court to do that. I only recall a series of decisions that took the question away from the people and the legislative process – which is the proper way that “the country… decide[s] to resolve their differences”. This is why I often call judges “our Black-Robed Platonic Guardian Rulers on the Court”.
The pro-abortion advocates also relied on an utterly false historical argument, claiming that in common law it was a recognized right for woman to terminate a pregnancy prior to quickening. That is completely bogus, and was comprehensively refuted by an excellent amicus brief by John Finnis and Robert George. They also made a patently false argument about the abortion laws of other countries, maintaining that other countries broadly allow abortion up to viability.
Reading the Tea Leaves
There is reason to be somewhat optimistic. It seems clear that three justices (Thomas, Alito and Kavanagh) were leaning towards overruling Roe/Casey and returning the ability to regulate abortion to the states. At least four justices (those three plus the Chief Justice) were inclined to find a way to uphold the Mississippi law, whether or not Roe/Casey were overruled. Justices Barret and Gorsuch were relatively quiet, but it seems likely that they will find a way to uphold the law and overturn Roe/Casey at some way.
That’s the good news. The bad news is that it’s hard to see from the oral argument where a majority of justices will find a common ground for a united decision. The danger is that there will be multiple splits of opinion, which will lead to even further doubt and uncertainty.
Obviously, we need to continue to pray for the Supreme Court, for wisdom and fortitude to do the right thing, and take a step towards giving true justice to unborn children by recognizing their humanity and their right to life and equal protection under the law.
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