On December 1st, the Supreme Court heard oral arguments for the Dobbs v. Jackson Women’s Health Organization case involving a challenge to Mississippi’s law prohibiting abortions after 15-weeks. While we can be almost certain that justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer will vote to keep abortion throughout all nine months legal by upholding Roe v. Wade, we have good reason to remain hopeful about the remaining six.
- Justice Clarence Thomas asked Elizabeth Prelogar, who is arguing for the federal government in support of Roe and Casey, to point to the specific right in the Constitution that is protected by Roe v. Wade, correctly suggesting that the Constitution doesn’t include the right to abortion. The attorneys asserted that “liberty” was the right that Roe protected, but Thomas was dissatisfied with the vagueness of their answer. He continued to push for more specificity, but was not met with a sufficient response.
- Justice Amy Coney Barrett also took issue with Roe’s precedent, noting that safe haven laws, which alleviate parental concerns about being able to raise a child, nullify the “need” for abortion to continue a career, as suggested by the abortion clinic’s attorney. “So it seems to me, seen in that light, both Roe and Casey emphasize the burdens of parenting…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?” asked Barrett, discrediting the reasoning of Julie Rikelman, who is arguing against Mississippi on behalf of the Jackson Women’s Health Organization abortion clinic.
- Chief Justice John Roberts argued against Roe v. Wade’s linchpin of viability. “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?” asked Roberts.
- Justice Samuel Alito also highlighted the arbitrariness of viability. “Why does a fetus have less of an interest in having its life protected prior to viability than after it?” he asked.
- Justice Brett Kavanaugh emphasized the Court’s limited jurisdiction, arguing that because abortion is not mentioned in the Consitution, SCOTUS does not have the ability to rule over it. “The Constitution’s neither pro-life nor pro-choice on the question of abortion…therefore, it should be left to the people…and we [the Supreme Court] should be scrupulously neutral on the question.” Kavanaugh also noted three celebrated cases that overruled prior decisions, suggesting that precedent can and should be overruled when necessary.
The justices’ questions and comments would appear to suggest that not only would the majority support Mississippi’s 15-week abortion ban but that they may go so far as to side with returning this issue to the states by overturning Roe v. Wade.
The justices asked questions and made comments in response to three lawyers including Scott G. Stewart, the Solicitor General of Mississippi, Julie Rikelman, litigation director of the Center for Reproductive Rights, and U.S. Solicitor General Elizabeth B. Prelogar, who represented the Biden administration in opposition to Mississippi’s law.
Here’s some additional analysis:
Looming Threat in Pennsylvania
Overturning Roe v Wade would not end abortion but empower the voice of the people through our elected leaders to govern state policy on abortion. For a breakdown of where Pennsylvania stands on abortion, visit our PA page that is part of the new AfterRoe.com campaign.
While Roe may be overturned in 2022, the abortion industry is trying to convince Pennsylvania’s State Supreme Court to “invent” the right to abortion in our state – and make you as a taxpayer pay for it. That’s why PA State Sen. Kim Ward and PA State Rep. Donna Oberlander have both put forth an amendment to keep abortion out of the Pennsylvania State Constitution. Contact your legislators and tell them you support the constitutional amendment & request your legislator to become a co-sponsor of this important action!
Please continue to pray for both of these court cases. The Dobbs case would serve as monumental turning points for the pro-life movement and we are hopeful for a favorable outcome. It is also critically important that we stay engaged here in PA through this new state constitutional amendment effort.