Three Takeaways from Today’s Dobbs Oral Arguments

The arguments were encouraging in that the Court was entertaining the consequences of a possible reversal or perhaps some other intermediate approach that would save Mississippi’s Law.

Today, the United States Supreme Court heard oral arguments on the most important pro-life case of our lifetime: Dobbs v. Jackson Women’s Health Organization. As hundreds of pro-life supporters rallied outside the courtroom (outnumbering the other side by a considerable margin!), inside the Justices heard arguments from the state of Mississippi, the Jackson abortion clinic, and the United States Solicitor General.

Here are the top three takeaways:

1-    Institutional Legitimacy was the Liberal Side’s Theme

Justice Stephen Brayer led the charge for the liberal side of the Court on this point. He quoted Casey and argued that to overturn Roe and Casey “Would subvert the Court’s legitimacy.” Justice Sonia Sotomayor, who blatantly and embarrassingly acted as an advocate for the pro-choice side instead of a justice of the Supreme Court, suggested the Court would not survive “the stench” of overturning Roe.

She’s obviously grown used to the fetor of more than 60 million babies aborted since 1973.

In the liberal side’s warped view, to overturn Roe would be a political action, but to impose abortion on demand on all Americans was not. They kept expressing concerns over the politicization of the Court as if it were not seen as activist in favor of abortion right now.

Mississippi’s State Solicitor General Scott Grant Stewart made clear that Roe and Casey had no grounding in the constitutional text and that the continued upholding of erroneous precedent is in fact more of a threat to the Court’s legitimacy.

At one point, Justice Brayer said the American people turned to the Court to solve this issue which was bizarre, and the solicitor general rightly pushed back correcting the record to say that it was not the people. In fact, the Court took the issue away from the people.

It was clear that the target of this line of arguments was Chief Justice John Roberts, and it is concerning that he seemed persuaded at some points, even saying out loud that he found Justice Breyer’s line of questioning persuasive.

But the Chief Justice’s concern over the arbitrary nature of the viability standard is cause for hope, too. He asked several times about the difference between viability and 15 weeks. He obviously didn’t see a whole lot of difference because there isn’t and not even the pro-abortion side can argue that the line of “viability” is somehow proscribed by the Constitution. It is an arbitrary Court invention that might be changed for another similarly arbitrary line.

The main point for Mississippi was that it is not the Court’s role to establish such a line, but that this is a role that the Constitution envisions as a quintessential legislative role.

2-    Super-duper Precedent Unpersuasive

The pro-abortion side tried several different ways to establish Roe as somehow distinct and different from other cases so that it should escape the Court’s reconsideration. A lot of time has passed since Roe, they argued, and Casey already affirmed it as is, so the Court should not mess with it, the argument goes. 

But Mississippi made clear at different points that “the fact that so much time has passed is not a point in Roe and Casey’s favor. They have no basis in the Constitution.”

Using the Plessy v. Ferguson example (a case that took 58 years for the Court to overturn in Brown v. Board of Education), Justice Samuel Alito forced the U.S. Solicitor General to admit that a clearly erroneous precedent should be overturned no matter what length of time has passed.

Justice Elena Kagan tried saying that not much has changed since Casey, and she wondered why they should reconsider it now. But again, if the case was erroneously decided, then it would be proper to overturn it.

3-    Both sides agree a middle approach is not workable.

Even though the other side briefly entertained a world in which the Court would strike down a “viability” standard, while maintaining the “undue burden” test, they quickly rejected it arguing time and again that “viability” is included within the “undue burden” analysis and cannot be separated.

Certainly, the liberal justices seemed resolved in maintaining the status quo, which, in a surprising way, helps make Mississippi's argument that the only way to resolve the issue is with a complete reversal.

Overall, the arguments were encouraging in that the Court was entertaining the consequences of a possible reversal or perhaps some other intermediate approach that would save Mississippi’s 15-week heartbeat law.

Let’s continue to earnestly pray, for it was clear that the justices’ consideration of the issues involved here is not nearly done. There is a lot of work to be done.