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 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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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.
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.
Roe was no more ‘legal’ than was obamacare. Both need struck down as usurpation of State issues by the court system.
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!
I agree. And there is no reason to use it as ‘birth control’. The people using it so they can play rabbit should be sterilized.
No matter what SCOTUS does, this will continuer to be a political football for the politicians.
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?
So, I guess it would be okay in her mind if her parents felt the same way.
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.
The only legitimate choice is to either practice safe sex or choose to raise and love the child produced if you didn’t. The fact that we have a society who feel it okay to murder an innocent infant to fix their irresponsible intercourse acts is immoral and disgusting, and we should all be ashamed that our government condones it.
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.
In modern times, the Democraps have always had at least a minimal strategy to eliminate voices who disagree. It’s a fundamental element of their existence that likens them so much to Communism …. The overriding goal of the Democraps is to “RULE”, not just “GOVERN.”
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.
…and that is a sign that now the Nation has acceded to one key element of Communism that weakens democratic Constitutional governance.
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.
democrats attempting to discuss anything to do with morality, that’s a stretch.
how’d these people even look in a mirror, such hypocrisy
Garye is spot on! The Democraps have political standard and precept with first consideration always being “what’s best for the Democrap Party.” And after passing that test, the Democrap Party’s top consideration is “what’s the worst for the Republican Party.” The Democrap Party is not a politcal Party … it is a Communistic Group that poses as a political Party. Remember… the Democrat Party wants to RULE the Nation while the Republican Party is more in the mode of governing the Nation. I do believe laws related to abortion should be formed and enforced at the State Constitution level.
Ha! in your opening line of your post, you have noted a tempting rational reason to rescind Roe!!!!!!
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.
Yes, murder is murder and this country has committed 63 million murders on babies that could not defend their selves and let people that should have been prosecuted and sentenced to death walk free. Shame on the USA
And there are no protests in the streets at all.
So sad and so shameful
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!!
And just how would you fix this, the Supreme Court has been around a long time. The justices are appointed & sworn in so I trust them to do the best of their abilities to protect our constitution. And quit throwing frivolous law suits at this Court.
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.
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.
As usual it comes down to following the money because those flowing in $ don’t care about life. Abortion has become a billion dollar business. Starting with Planned Parenthood who throws huge amounts to the democrats which they use in turn for campaigns. More so is what they do with the aborted fetus. Take the cells to manufacture deadly vaccines and keep the organs to sell on the black market. It’s time to take these demons DOWN along with their piggy banks they take for granted. May God bless and inspire this court to make things right for this Country and the Americans who live here. Especially those waiting to be born.
As for the kids out there claiming it’s their right, YOU have the choice to make before conception. No matter which party chose to use contraception. Didn’t mommy or daddy tell you about the “birds and the bees’?” ??
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!
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.
Talking Heads mean nothing to me. Wait for the Court to make a decision, then people can blather all they want.
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?
And I think I heard something along those lines a while back where Pro-choice advocates were working to change that law to justify the Left’s Pro-choice stance. They probably had it thrown in their collective faces before and had no answer for it. For them, changing laws pertaining to their causes is the way forward. They never have a legitimate common sense answer for anything of truth.
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.