No, we don’t have a prediction for you. But find out what was said at the oral arguments today in Dobbs v. Jackson Women’s Health Organization, and reach your own conclusion.
The Two Main Issues
The issue at stake in Dobbs is Roe v. Wade itself (and Planned Parenthood v. Casey). Can states ban abortion before the point a child can survive outside the womb (viability)? Both the state of Mississippi’s solicitor general and the abortion facility’s lawyer seemed to agree that a decision upholding Mississippi’s law while keeping Roe v. Wade intact didn’t make a lot of sense.
If the U.S. Supreme Court tried to do that, it must get rid of viability as a meaningful legal line (even though abortion is still legal in America after viability for almost any reason). The abortion facility frequently stressed that viability was a “workable” standard, but several justices pushed back. Justice Barrett asked them why the third trimester wouldn’t also be a meaningful standard, and they had no clear answer. Chief Justice Roberts seemed skeptical of viability being meaningful.
Instead of simply upholding the Mississippi law, we want the Supreme Court to overturn Roe. Mississippi forcefully pointed out how atrocious Roe is, and how unworkable it has become. In order to overturn Roe, the Supreme Court must be willing to throw out an established precedent. Justice Breyer focused exclusively on this topic, making the case that the only way for the Supreme Court to retain public opinion support is to totally ignore public opinion on abortion laws and maintain Roe at all costs. Justice Kavanaugh provided a long list of prior decisions the Supreme Court has overturned.
The pro-abortion justices’ fixation on public opinion is an odd contradiction. At one point Justice Kagan reduced democracy to simply whichever part of the public yells the loudest. Justice Sotomayor at one point essentially said the Supreme Court was the U.S. Constitution. They clearly don’t believe we the people should have any say, yet their justification for keeping Roe is most Americans won’t like overturning it and think the Supreme Court is too political. The three pro-abortion justices know the American public does not generally support unlimited abortion, which is why they feel compelled to defend Roe at all cost.
The Role of Science
To help back up their claim that the precedent of Roe must not be touched, the abortion facility and Justice Sotomayor repeatedly asserted nothing has changed in the last 50 years. Really. Embarrassingly, the abortion facility claimed that viability is at 24 weeks of pregnancy. Well, in fact, viability has shifted down past the 22-week point, since children born before 22 weeks have survived. The pro-abortion conception of science may not have changed since 1973—or 1876 for that matter, when it was proven beyond doubt that everyone’s life began at fertilization—but democracy in America and the lives of millions of unborn children should not be held hostage by their willful ignorance.
In debating changes in our conception of the unborn child since 1973, Justice Sotomayor made an odd analogy, likening unborn children to corpses. She said people with brain death have made remarkable recoveries, apparently trying to cast doubt on our understanding of fetal pain and awareness. Justice Sotomayor seemed to not understand that people who are brain dead and people in persistent vegetative states—who sometimes do experience remarkable recoveries—are two different things. She remarked that just because unborn children react like they are in pain during an abortion doesn’t mean they are in pain, because corpses move. What can one say about such a ridiculous analogy?
What is Abortion?
Justice Thomas typically never asks questions during oral arguments. In this case, he asked a flurry of questions. Most of his questions tried to focus the abortion facility and the U.S. solicitor general (representing President Biden and his support for unlimited abortion) on what exactly is the right to abortion? Is it autonomy? Liberty? Both pro-abortion lawyers struggled to answer clearly without resorting to a word salad. At one point, the U.S. solicitor general suggested abortion is a form of contraception. Their overall view was the right to abortion is the sole foundation of women’s rights and the foundation of many other Supreme Court cases. They said women cannot be equal if their unborn children are treated as human beings.
Recognizing that abortion is not popular, the Abortion Industry is desperately hoping to convince people who aren’t adamant about supporting abortion that every right they enjoy—their humanity itself—is based solely on the ability to take the life of an unborn child. That argument shares a direct parallel with pro-slavery arguments, which asserted that free Americans would be made less equal if we cannot continue dehumanizing an entire class of human beings.
The source of women’s rights is not because the Supreme Court currently allows their children to be killed at will—they have rights because they are human beings. Unborn children are undeniably human beings. Parents and children are not enemies, and our human rights do not come at the expense of the human rights of others.
Justice Barrett tried to get to the heart of this issue by focusing on safe delivery laws: if the right to abortion is merely the right not to be a parent, why aren’t safe delivery laws that allow women to surrender children after birth enough?
Backing Segregation to Own the Prolifers
While we’re on the topic of race, one disturbing line of questioning highlighted the immorality of the abortion facility’s argument that the Supreme Court can’t reverse an egregiously wrong precedent without some sort of special circumstance. Justice Alito asked the U.S. solicitor general if the Supreme Court could have immediately reversed their decision in Plessy v. Ferguson, which upheld the unconstitutional practice of segregation. To the shock of even the solicitor general, she seemed to initially say the Supreme Court would have been forced to uphold segregation in the years immediately after their horrible decision. As she continued her argument, the gravity of her comments seemed to finally sink in, and she took Justice Alito up on a generous opportunity to admit the Supreme Court ought to have reversed their ruling in Plessy immediately because it was egregiously wrong.
Factchecking the Abortion Supporters
Chief Justice Roberts at one point compared the extreme nature of abortion law under Roe with other countries. Most countries restrict abortion even further than Mississippi’s 15-week abortion ban. The abortion facility pushed back by falsely claiming most countries allow abortions up to the point of viability.
At another point, Justice Alito asked about the history of abortion. He directly challenged the pro-abortion lawyer to cite a case to back up her claim that abortion was broadly legal in America in the 18th century, and also to cite her main historical source. In both cases, the lawyer failed. For the record, it was Cyril Means who invented a fictional history on abortion that the Supreme Court relied on in Roe v. Wade; we suppose in 50 years, some things haven’t changed after all.
A Middle Ground?
Chief Justice Roberts appeared to be grasping for a way to “split the baby” and allow Roe to stand while getting rid of the viability rule to uphold Mississippi’s law. Other justices asked hypothetical questions about what that might look like. From the questions and responses of Mississippi and the abortion facility, it is clear any such new legal line would be as arbitrary and capricious as the trimesters of Roe or the current standard of the shifting point of viability in Casey.
Conclusion: Evasion vs. Clarity
Overall, it was very clear how little Roe v. Wade has do to with law. Both the abortion facility’s lawyer and the U.S. solicitor general wouldn’t answer several questions, used bad facts, and generally focused on abortion’s social good and the politics of overturning Roe. They couldn’t clearly articulate what the right to abortion is. Their arguments belonged more in a debate class or a senate committee than our nation’s highest court. As one noted pro-abortion legal scholar admitted a long time ago, “one of the most curious things about Roe is that behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Mississippi’s solicitor general had the much easier job: simply point out how Roe v. Wade is obviously wrong and say the Supreme Court should do the right thing.
Will the Supreme Court do the right thing? It will likely be many months before we know. Whatever the decision, we will always remain steadfastly committed to our mission of restoring legal rights to every unborn child.