The Supreme Court oral argument in Dobbs v. Jackson Women’s Health Organization on December 1st so exceeded expectations that it would not be hyperbolic to say it was, in many ways, a day for the ages. (For a play-by-play of the oral argument, see my colleague Carolyn McDonnell’s excellent debrief on the AUL website. I’m here to provide the color commentary.) Dobbs elevated the debate over abortion to the status of a national town hall meeting involving the most open and honest airing of views on abortion ever heard in the Court.
The Abortion Debate We Should Have Had Decades Ago
For decades, it seemed to those of us in the pro-life movement as if the Court were hearing arguments in a glass room. You could see the Justices’ lips moving, but there was little or no indication that they were hearing us, and the Court’s arguments and written opinions tended to sidestep the real issues. Cracks appeared in the glass wall every so often – Justice Kennedy’s acknowledgment in Gonzales v. Carhart that “some women come to regret their choice to abort the life they once created and sustained,” for example, or Justice Thomas’s diatribe against eugenic abortion a couple of years ago in Box v. Planned Parenthood of Indiana, but with Dobbs, the walls seem to have shattered. The Justices debated ultimate questions not only about the overturn of Roe but also the role of religion, the validity of medical science, the reliance interests asserted by Casey, the history of abortion – all the elephants in the room were called out and thrown on the table. This is the debate that we should have had in the Supreme Court decades ago, and I’m very grateful that we heard it last week.
Perhaps the advocacy rose to the occasion. More likely, I think, the advocacy raised the bar on this debate. There was no room for piddling distinctions or arcane semantic arguments in this mano-a-mano slugfest. Both sides came committed to a winner-take-all position – either Roe must go, or Roe must be soundly affirmed with Casey’s viability line. The Court’s argument procedures called upon Justice Thomas as the senior member of the Court to speak first, and he opened the door wide for Mississippi Solicitor General Scott Stewart, his former law clerk. Thomas inquired of Stewart what standard would replace Roe, and Stewart replied that the rational basis standard would govern – the same standard that applies to all laws. What Justice Thomas did for Stewart (who was more than willing to go there), Alito later did to Jackson Women’s Health advocate Julie Rikelman, by boxing Rikelman into admitting that they would accept no partial standard if Roe and Casey were overturned. So all the chips were on the table from the outset; Mississippi committed to overturning Roe, and Jackson Women’s Health and the U.S. Solicitor General committed to a fully re-engineered Roe that hearkened back to the pre-Casey era. They are, and have always been, stuck in the 70s.
The rhetorical door was thereby flung open wide enough for the parade of elephants to march through. The real history of abortion law – not the ersatz whitewash that Justice Blackmun gave it in Roe – was thoroughly vetted, thanks to Justice Alito’s references to the top historian on abortion, Dr. Joseph Dellapenna of Villanova, whose magisterial 1200-page work on abortion history, Dispelling the Myths of Abortion History, has never been equaled. Mississippi detailed the truth about the danger of abortion at 15 weeks and the science that warns us babies feel the pain of abortion at that age. (Despite Justice Sotomayor’s protestations, the doctors who do intra-fetal surgery don’t deny that infants in the womb feel pain – they use fetal anesthetic.)
The Chief Justice came out skeptical of the viability line of Casey, showing some courage in questioning one of the sacred cows of abortion – the notion that women have come to rely on abortion. Roberts rightly remarked that “as far as viability goes, I don’t see what that has to do with the question of choice at all.” Rejecting U.S. Solicitor General Elizabeth Prelogar’s contention that viability is “both a logical and a biological justification that it marks the point in pregnancy when the fetus is capable of meaningful life,” the Chief Justice referred to former Yale Dean John Hart Ely’s The Wages of Crying Wolf in calling Prelogar’s argument “a complete syllogism. That’s the definition of viability. It’s not a reason that viability is a good line.” Roberts pushed back strongly on the notion that women “rely” on abortion at 12 weeks, 15 weeks, or even later in the pregnancy– especially since Roe essentially brooks no exception to that reliance interest. Markedly, the Chief Justice indicated that a fifteen-week ban “[is] not a dramatic departure from viability. It is the standard that the vast majority of other countries have.” The Chief Justice referred to the fact that Roe makes the U.S. extreme – in bad company with anti-humanitarian nations like China and North Korea.
Desperation In The Pro-Abortion Defense
The pro-abortion Justices seemed on the defensive. Justice Breyer sounded downright desperate to retain Roe and Casey, based not on any constitutional defense of Roe or even a policy-based defense of abortion, but solely on stare decisis and the Court’s need to avoid appearing “political”. Clearly, he was arguing to an audience of one – the Chief Justice. For his part, Chief Justice Roberts appeared to be having none of it, querying whether a precedent had to be wrong in hindsight to be overturned, or if could be overturned if wrong at the outset. And Justice Alito went so far as to air the view that Roe may be another Plessy v. Ferguson – the “separate but equal” decision the Court overturned in Brown v. Board of Education:
[T]here was a lot of reliance on Plessy. The south built up a whole society based on the idea of white supremacy. So there was a lot of reliance…. It was… improper reliance. It was reliance on an egregiously wrong understanding of what equal protection means.
Justice Sotomayor avoided the hard questions about fetal development and fetal pain, deflecting them every chance she got. Justice Kagan was not engaged as an advocate for Roe – she appeared actually confused at one point when she asked Scott Stewart what the effect of the Court’s decision would be on future cases, and Stewart appropriately told her there wouldn’t be future cases.
Where Will Dobbs Take Us?
Reporters keep asking us where the Court is going in Dobbs. My answer is that I don’t know, but I like where they’re starting from. The fact that they are camped on this spot, thoroughly discussing the hardest questions about abortion – religion, medicine, legitimacy of the court, politics – even 14th Amendment “personhood” – is all extremely encouraging. The pro-life movement has always said that the presuppositions of Roe would wither under a truly close examination, and it looks like our prediction may be coming true.
And on that note, one last thought. It’s high time that we stopped talking about the Court “chipping away” at Roe – we’re well past that. Roe has been hacked to pieces over nearly fifty years, as the Supreme Court has furiously backpedaled from the extreme abortion right it created out of thin air in 1973. Abortion advocates like Rikelman want you to think that Roe is a gleaming alabaster monolith, but the reality is that Roe is an Ozymandias – the shattered visage of a once-great Colossus, with no more power to make the States tremble as it once did. Roe is a derelict adrift – a ghost ship crewed by the memories of what it used to be. It’s past time for the Court to lay it to rest and return the most controversial political issue of our day to the States and the People – where it belongs.
