AMAC Exclusive – By Shane Harris

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 14^th 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 5^th 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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