The Supreme Court has heard the opening arguments of Dobbs v. Jackson Women’s Health Organization which challenges the state of Mississippi’s 15-week ban on abortion and could spell the end of Roe v. Wade. Mainstream media outlets from Forbes to Reuters are sounding the alarm in near unison, that the “Supreme Court seems poised to consider new limits on ‘right’ to abortion”. They seem to base this assertion on the fact that the more conservative bench of Justices including Thomas, Kavanaugh, Gorsuch, Alito, Kennedy, and Barrett have dared to question where the supposed ‘right’ originates from constitutionally, and further challenged the grounds of viability, undue burden and the relief of parental responsibility.
According to Forbes,
“In Dobbs v. Jackson Women’s Health, the court is considering whether all prohibitions on abortions that take place before the fetus is viable—approximately 24 weeks into the pregnancy—are unconstitutional, as it previously ruled in Roe v. Wade in 1973 and then upheld in Planned Parenthood v. Casey in 1992.
Mississippi has explicitly asked the court to overturn Roe v. Wade.”
During one of the more impactful colloquies, U.S. Solicitor General Elizabeth Prelogar was pressed by Supreme Court Justice Clarence Thomas to explain what if any constitutional grounding the supposed “right” to abortion has. “If we were talking about the second amendment, I know what we’re talking about. Because it’s written, it’s there. What specifically is the right here [to abortion] that we’re talking about?”
“What I’m trying to focus on, is if we — is to lower the level of generality, or at least be a little bit more specific. In the old days, we used to say it was a right to privacy that the court found in the due process, substantive due process clause, okay. … And I’m trying to get you to tell me what are we relying on now? Is it privacy? Is it autonomy? What is it?” Thomas asked.
Justice Thomas’ skepticism set the tone for the entire hearing.
Justice Thomas: "If we were talking about the second amendment, I know what we're talking about. Because it's written, it's there. What specifically is the right here [to abortion] that we're talking about?" pic.twitter.com/0JEPecy40z
— Greg Price (@greg_price11) December 1, 2021
He continued citing the criminality of child neglect of an infant in the womb. “Does a mother have a right to ingest drugs and harm a pre-viable baby? Can the state bring child neglect charges against the mother?” Thomas asked.
“You heard my question to counsel earlier about the woman who was convicted of criminal child neglect. What would be your reaction to that as far as her liberty and whether or not the liberty interests that we’re talking about extends to her?” Thomas continued. Prelogar’s arguments were if anything somewhat repetitive in the assertion of only the pregnant woman’s bodily autonomy and interests, pointedly dismissing or ignoring outright that of the child.
Kavanaugh Stresses The Constitution’s ‘Neutrality’
Similarly, Justice Brett Kavanaugh voiced a common interpretation by Constitutional scholars that nothing in the document enumerates or protects these so-called ‘abortion rights’.
“The Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue to the people of the states or perhaps Congress to resolve in the democratic process,” Kavanaugh said.
“If you think about … the most consequential cases in this court’s history, there’s a string of them that overruled precedent,” Kavanaugh continued “If … we think the prior precedents are seriously wrong, if that, why then doesn’t the history of this court’s practice, with respect to those cases, tell us that the right answer is to return to the position of neutrality.”
Is Chief Justice Roberts Trying To Preserve Roe?
Chief Justice John Roberts suggested that SCOTUS could uphold the Mississippi ruling without overturning Roe v. Wade but it is unclear if the other five ‘conservative’ Justices share his opinion.
“Why is 15 weeks not enough time” for a woman to decide to have an abortion, Roberts asked.
Justice Alito took a different angle, targeting the Stare Decisis rulings of the past and reminded Solicitor General Prelogar that “there are circumstances in which a decision … must be overruled simply because it was egregiously wrong at the moment it was decided,” Justice Amy Coney Barrett a mother of seven challenged the prospect of retaining Roe as case law on the basis that safe haven laws and modernized adoption practices have erased the basis for SCOTUS’ decision to uphold Roe v. Wade in the 1992 decision of Planned Parenthood v. Casey.
Mark Joseph Stern wrote in Slate that Barrett, by raising this option, had taken “direct aim at Casey, the 1992 decision that reaffirmed Roe while injecting an equality principle into the right to abortion by explaining that the burdens of parenthood diminished women’s personal and professional opportunities. She suggested that this concern has been obviated by ‘safe haven laws,’ and more broadly by the expansion of adoption in the U.S., rendering Casey’s reasoning obsolete — and its holding ripe for reversal.”
As Joan Frawley Desmond of the National Catholic Register noted, “What’s also significant for Court watchers is the fact that with three justices (Sotomayor, Kagan, Breyer) expected to oppose the state law, and three (Thomas, Alito, Gorsuch) expected to overthrow Roe and Casey, Chief Justice John Roberts would need two votes (Kavanaugh and Barrett) to fulfill his reported goal of securing a narrow decision that would allow Roe to stand while restricting abortions to 15 weeks. Barrett’s comments suggest she will not give Roberts the help he needs.”
As has already occurred so many times, much will fall on the shoulders of Kavanaugh and Barrett, in another ruling that will echo through the ages, either with the voices of lives saved or the anguished silenced voices of the dead.