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Supreme Court Justices Signal Coming Changes to Abortion Laws

Posted on Thursday, December 2, 2021
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AMAC Exclusive – By Shane Harris

abortion

Yesterday, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, in what many court-watchers are billing as the most significant challenge in decades to the landmark abortion cases Roe v. Wade and Planned Parenthood v. Casey. Thanks to changes put in place during the coronavirus pandemic last year, audio recording is now allowed in the courtroom, and Americans have for the first time been able to hear how the discussion plays out in real time on some of the most consequential issues facing the country today. In just over two hours of question-and-answer on Wednesday, the petitioners and respondents established their battle lines on the issue of abortion and several Justices dropped some hints as to how they might rule on the case.

Key to the arguments made by both sides were the precedents set by the rulings in the two prior monumental abortion cases, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). In Roe, the Court held that the due process clause of the 14th Amendment protects the right to an abortion as part of a general right to privacy that the Court had previously found to exist under that amendment. The Court also adopted the “trimester framework,” whereby states cannot outlaw abortion during the first trimester, they may implement some regulations during the second trimester, and they may ban abortion during the third trimester except when an abortion is necessary to protect the life or health of the mother.

19 years later with the Casey ruling, the Court largely upheld its decision in Roe, but replaced the trimester framework with what has emerged as a key issue in the Dobbs case, the “undue burden test.” According to that test, states may impose abortion restrictions as long as they do not present an “undue burden” or “substantial obstacle” to the right to obtain an abortion before a fetus is viable. For both Roe and Casey, the age at which a fetus becomes viable outside the womb was key in establishing the legality of an abortion, something that would also factor big in the Dobbs arguments.

The Dobbs case deals with a challenge to a Mississippi law that bans almost all abortions after 15 weeks. The law was blocked by both a federal district court and a conservative 5th Circuit Court of Appeals on the grounds that Roe and Casey bar states from banning abortions before fetal viability – now accepted as 24 weeks. Although the case did not start off as an overt challenge to Roe and Casey, by the time the case made it to the Supreme Court, the State of Mississippi, which is defending the law in question, called the Roe and Casey rulings “unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law – and, in doing so, harmed this Court.” 

But if Mississippi is going to prevail in challenging Roe and Casey, it will first have to convince at least five Justices to go against the legal principle of “stare decisis,” which says that courts should generally adhere to their previous rulings unless given a compelling enough reason to overrule them.

Three Justices – Clarence Thomas, Samuel Alito, and Brett Kavanaugh – indicated on Wednesday that they may be prepared to do just that.

Justice Thomas is the only current justice who also presided over the Casey case in 1992. He was opposed to the majority ruling then, writing that “Roe was wrongly decided” and that it “can and should be overruled.” Nothing Thomas said on Wednesday throws any of that into doubt.

Justice Alito immediately took issue with the viability line established by Roe and Casey, calling it “arbitrary” and saying that it “doesn’t make any sense.” In other words, he seemed to be asking, who are nine Justices to decide when something is and is not a human life? Alito also added that “the fetus has an interest in having a life, and that doesn’t change from the point before viability and after viability.”

Justice Kavanaugh seemed to agree with the State of Mississippi’s argument that the Constitution is silent on the issue of abortion, and that the issue should therefore be left to the states to decide, an opinion that conflicts directly with Roe. Toward the end of the argument, Kavanaugh then listed several shameful cases from the Court’s history that have since been overturned, including Plessy v. Ferguson, which established the notorious “separate but equal” doctrine.” If the court had rigidly adhered to stare decisis, Kavanaugh concluded “the country would be a much different place.”

Chief Justice John Roberts, who was nominated by President George W. Bush but has long been a thorn in the side of many conservatives, was uncharacteristically skeptical of the abortion clinic’s arguments. On the issue of viability in particular, he said that “viability, it seems to me, doesn’t have anything to do with choice. If it really is an issue about choice, why is 15 weeks not enough time?” That could indicate that he is at least willing to hold up Mississippi’s 15-week ban, although overturning Roe and Casey outright may be a bigger ask.

If Thomas, Alito, and Roberts are indeed willing to revisit Roe and Casey, that would leave conservatives needing to win over one of two remaining conservative votes – Neil Gorsuch and Amy Coney Barrett – to uphold the Mississippi law.

The Court’s liberal Justices, however, appeared equally determined to protect Roe and Casey and strike down the Mississippi law.

Justice Sonya Sotomayor, who many consider to be the Court’s most liberal member, quickly tried to make the Dobbs case about upholding the public perception of the court in the event a majority of justices were tempted to overturn Roe and Casey, asking “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Such a vehement statement from a justice during oral argument suggests that Sotomayor was playing more to the audience listening in, a potential sign of the changing dynamics of courtroom proceedings with live audio.

Justice Stephen Breyer, a Bill Clinton appointee, said that “reexamining” Roe “would subvert the court’s legitimacy.” Neither justice apparently believed the Court’s legitimacy was endangered by the original discovery in Roe of a Constitutional right to abortion nearly two centuries after the document was written.

Sotomayor questioned new science that suggests a fetus can feel pain the womb far earlier than previously thought. During her line of inquiry, she compared an unborn baby to a “brain dead person” saying that “there are spontaneous acts by brain-dead people. So I don’t think that a response by a fetus necessarily proves that there’s a sensation of pain or that there’s consciousness.” Critics were quick to question the notion of treating unborn babies as brain-dead adults.

These comments by the Justices on both sides of the political spectrum have made it abundantly clear that this case will be one of the most bitterly contested and hotly debated in years. At stake is not just one Mississippi law, but potentially decades of precedent and millions of yet-unborn lives. Although conservatives emerged from Wednesday’s proceedings optimistic thanks to a 6-3 majority solidified under President Trump, the scope and extent of the final ruling – if it is indeed the ruling pro-lifers are hoping for – will determine whether that victory is only incremental or is as sweeping as they have long dreamed.

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Stephen Russell
Stephen Russell
2 years ago

Overturn Roe vs Wade, Must, end the killing since 1973

Harry Ivan
Harry Ivan
2 years ago

It is a Federal Crime to destroy an American eagle’s EGG!!! How can they justify the murder of a human fetus?! Long overdue to put a stop to this slaughter of souls!

Philip Hammersley
Philip Hammersley
2 years ago

Sotomayor, the “wise Latina,” is an idiot. Even the “dead” man who reacts to a stimulus had to be alive at some point in order for his muscles to react. Obviously, unless you are morally blind, a baby in the womb is a unique, LIVING, human being! That’s SCIENCE!!

Morbious
Morbious
2 years ago

Every now and then the commies provide comic relief. This justice refering to anyone else as brain dead is just that.

Veteran
Veteran
2 years ago

Neither a brain dead person, nor an unborn fall under the jurisdiction of any court in the United States, they “were endowed by their creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” No crime committed by them the courts of this, or any other country have no right to judge for them over life, or death. This isn’t brain surgery, although Sonya Sotomayor seems to grapple with the decision and the notion of vanity, and overreaching power that her, and SCOTUS reputation is somehow involved, and judges have the option to sentence innocents to death to preserve it, what hubris! I hope that those who might agree with her will bear in mind that God the ultimate judge might add statements like hers to the preponderance of aggravating evidence.

Myrna
Myrna
2 years ago

Abortion never should have been decided by the Supreme Court: that is why it does not remain “decided”. The death penalty varies from state to state. Abortion is in the same delicate area of law.
I was so encouraged to hear that the court did not dismiss Mississippi as “already decided.”
There is relevant guidance in the constitution: there is protection of life and women do have rights.
I think the citizens of our country will not miss it when Roe v Wade is over-turned. This decision will go back to the states eventually.

Richard Hennessy
Richard Hennessy
2 years ago

A change to Federal abortion rules would not be a change in law; it would be a change from the unlawful abuse of the Constitution by a rogue leftist Court in the Roe v Wade decision, one which had no basis in the Constitution, but rather was rooted in the then sitting Justices’ leftist agenda.

Legally present
Legally present
2 years ago

With all the ways of preventing a pregnancy, why do we even need abortions??? I don’t see how you can murder your own developing child.

DJames
DJames
2 years ago

Patriots, Pray for God to intervene in SCOTUS. We must protect the helpless creations of God …or stand in His final judgement.

Wayne Peterkin
Wayne Peterkin
2 years ago

While we can hope the horror of unrestricted abortion-on-demand will be curtailed, I would be very careful trying to predict what this court might do. The questions by the justices may give clues to their thinking, it is way too premature to predict an outcome. Obviously Breyer, Sotomayor, and Kagan will vote to keep Roe as is. While some of the others may lean toward reversal of Roe or allowing state restrictions, it is risky to assume anything at this point. Roberts is always a big question mark and the other poorly named “conservatives” can be unpredictable. Thomas will likely do what’s right and perhaps Alito will follow. Gorsuch, Kavanaugh,and Barrett are unknowns. Re. precedent: bad past rulings should always be reconsidered and overturned when appropriate and Roe was a very bad decision made purely for political and not constitutional reasons.

Ralph S
Ralph S
2 years ago

If Justice Sotomayor needs confirmation of how “brain-dead” persons react,,, she need only look in a mirror!

KDSQ
KDSQ
2 years ago

So, just curious, can we attack a sitting justice of SCOTUS, if she is brain dead and not ever be charged for a crime?

KDSQ
KDSQ
2 years ago

One other thing. I have been saying this for at least 30 years. Why do they say they are making decisions about their own body? If they want to kill themselves, fine that is their body, but killing the child growing inside is killing someone else’s body. And they didn’t create that growing human being by themselves.

Hal
Hal
2 years ago

I recall vaguely when Sotomyass was appointed to the SCOTUS. At the time I was astonished that her qualifications were so unqualifying that it didn’t seem right. Her time in SCOTUS has reinforced by original concerns. It seems that the Democraps appoint Justices that want to inflict their political views instead of support the tenets prescribed and inscribe in the Constitution (a key step in converting our Constitutional Democracy into a Communistic Autocracy).

Michael Bregg
Michael Bregg
2 years ago

Sotomayor questioning science then making a comparing an unborn baby to a “brain dead person” saying that “there are spontaneous acts by brain-dead people” just turns my stomach.
These lfetist are demonic in nature.

Diesel Dave
Diesel Dave
2 years ago

SCOTUS must rule in favor or these innocent babies. Let’s put planned parenthood out of business. They’re wasting our hard-earned tax dollars.

MariaRose
MariaRose
2 years ago

Hopefully, access to all birth control methods will become a covered right which should lower pregnancy rates between individuals. Abortions were pushed as a need for women to stop unwanted pregnancies which occurred because access and provision of birth control were not available. I am not including rape of any definition in this comment, but most acts of sexual contact that occur. If one is going to partake in that 30 seconds of pleasure one needs to take the responsibility to plan prevention. Leaving it to chance is not a wise decision, plus exposure to other STD infections should also be considered.

Eddie Van Halen
Eddie Van Halen
2 years ago

This abortion issue magnifies how STUPID consenting men and women really are. It is ALL about, in this case, irresponsible sex by two irresponsible adults of the opposite sex. So, India and China are the two stupidest nations on earth ?

Willie
Willie
2 years ago

Kill babies no murder babies next murder the old and those that are not perfect.God is looking and watching and he hates murder . Payday is coming.

Bob
Bob
2 years ago

Here we go…down the “slippery slope”. So, if a bay does not “feel pain” than it is not viable. Well, a “baby”, and children well into adolescence, rarely contributes to a society. As such can they to be eliminated too? Is that going to be the justification for infanticide a hundred years from now?

And because people, maybe even the majority of the population, will be upset by a favorable decision for Mississippi, according to Sotomeyer, the court should not rule for Mississippi. By that logic, to hell with principles, just do what is most popular. (If I look-up “dumb” in the dictionary, will I find her picture?)

If I’m not mistaken, if a criminal kills a woman and an unborn child, are they not charged with two murders? If that is the case, then how can abortion not be murder, though done with the mother’s permission?

R.J. from Arizona
R.J. from Arizona
2 years ago

Talking Heads mean nothing to me. Wait for the Court to make a decision, then people can blather all they want.

Ron Carlson
Ron Carlson
2 years ago

The devaluation of life via legalized abortion permeates all aspects of human existence. If the state can disregard the Constitutionally guaranteed right to life as it applies to the most vulnerable, there is no point during one’s time on earth that someone else might not assume the same justification as an excuse for extinguishing any one of us. School shootings may be justified in the mind of the killer as an application of the right to administer a very late-term abortion. Elimination of the elderly is pragmatically simply an extension of Roe to one’s later years of life when vulnerability again increases. The 65 million babies that have been sacrificed during the past 50 years illustrates what happens when the Supreme court illegitimately seizes authority to amend the constitution. We can only hope and pray that the court collectively has the wisdom to use this current opportunity to correct this error as it did in the case of Dred Scott v Sanford which was based upon the same defective legal analysis.

Momcat
Momcat
2 years ago

Planned Parenthood wants abortion to sell the baby parts & big pharma wants it so those fetal cells can be used in vaccines… most all modern vaccines use fetal cells now when before they didn’t. we never had so many instances of autism & auto immune diseases til vaccines were made with fetal cells & forced on our children instead of the preferable natural immunity acquired when you get the disease & allow your immune system to fight it. we’re killing our children by ruining their immune system with the fetal cell-tainted vaccines for diseases that in most cases are an inconvenience. Abortion is murder for monetary enrichment. End this barbaric action now!

Judith Grominger
Judith Grominger
2 years ago

When Roe v Wade was decided, it was after arguments presented with false facts in an effort to deceive to the point of legalizing the genocide of unborn human beings from Federal perspective. The decision of whether or not to abort an unborn human being should be returned to the individual states, as originally intended so individuals within individual states may make such a crucial and moral decision; it is a moral decision. Should some justices come to the decision to return the decision of extermination of human life to the indivual states, the proper individual decision would be returned to its rightful place. Such a decision should never have been presented to the Supreme Court for such a crucial consideration. Its time for the bad decision made back in 1973 be reversed so the states can make such a crucual and moral decision.

Garye
Garye
2 years ago

Praying for the Supreme Court to exhibit wisdom and sound judgement to end what has been the deaths of 60 million innocent and vulnerable human lives.
May God be with them.

Judy
Judy
2 years ago

Who still has confidence in the U.S. Supreme Court? I don’t! They lost all credibility when Sidney Powell, who is a Military Attorney, brought evidence of election fraud to be reviewed and the Justice’s refused to even look at it.
They are the highest court in the land and supposed to be the last avenue for final justice for the people. That was the saddest day for this country. When people who are put in those positions swear an oath to adhere to protecting our Constitution with which American’s live by, they will be held to the highest standards. Millions of Americans, around at least 100,000,000, were counting on them to save our election integrity. They failed! I have no doubt they and their families lives were threatened and that if they took on the case that Demonrat hell would be unleashed upon this nation. THEY SWORE AN OATH TO UPHOLD THEIR JUDICIAL DUTIES TO THIS COUNTRY!!
Any of them who have claimed they live by faith in their God, knows they will answer for decisions they make. I can’t even imagine what Justice’s like Gorsuch and Thomas must be enduring. This country is pretty much done unless our God has heard the desperate cries of His people for forgiveness and He intervenes to restore us back to HIS ways. At this point, I don’t see things going any other way as the road to saving this nation. May God indeed help us all!!

Richard Cordell
Richard Cordell
2 years ago

Bottom line is … murder is murder, no matter who’s doing it and why. There’s laws already on the “books” condemning murder. Those laws should apply to the horrible murder of an innocent child.

GTPatriot
GTPatriot
2 years ago

If Roe is rescinded, dems will jump off buildings. Roe is their holy grail.
They believe in Roe more than civil rights, welfare, and teacher’s unions.
We must understand the priorities of the left. Their need of the female vote
requires commitment to Roe and for them, its a good bet.

GTPatriot
GTPatriot
2 years ago

The primary concern is twofold: the rights of the unborn and yes, just as much, states rights.
Long ago Congress and the court system declared that federalism which is the right of each
state to determine its own course, is irrelevant.

GTPatriot
GTPatriot
2 years ago

The dems have longed believed that , over time, the country would “come around” to their
twisted decisions if we have enough time (decades) to “absorb” them. We now know that
school integration law from the ’50’s and Roe from the 70’s has never been accepted by this
nation. The dems have found out that time does not change attitudes and they now must resort
to eliminating voices who disagree.

Garye
Garye
2 years ago

It’s about choice. Choose life and choose responsibility for yourself and everyone’s life!
Respect for life ,ALL life as God’s gift would make everything in this World better.

Jeff
Jeff
2 years ago

So, I guess it would be okay in her mind if her parents felt the same way.

Robin Walter Boyd
Robin Walter Boyd
2 years ago

That 24 weeks for fetal viability needs to be lowered. Babies have been born at 22 weeks and have survived. We certainly should not be playing god by making the determination to kill a baby based on a percentage of expected survival rate. Even if survival rate is only one in ten thousand, wouldn’t you want to be given a chance at life if you were that one?

Hal
Hal
2 years ago

No matter what SCOTUS does, this will continuer to be a political football for the politicians.

Ath20
Ath20
2 years ago

Though I don’t believe abortion should be outlawed completely. There is no reason for late-term abortions! And in this day and age getting pregnant by mistake should be very very slim!

Becky
Becky
2 years ago

Roe was no more ‘legal’ than was obamacare. Both need struck down as usurpation of State issues by the court system.

Mario Capparuccini
Mario Capparuccini
2 years ago

Abortion is the American Holocaust. God will judge us for this sin. He already is. We have killed tens of millions of tax paying citizens so that Social Security will go bankrupt. That is justice for the wickedness of the baby boom generation that celebrated the Roe decision.

Ron Howard
Ron Howard
2 years ago

It sounds as if Sotomayor, and a few other justices are trying to make decisions based on scientific or medical basis for which they are not qualified to make.

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