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On Wednesday morning at 10 a.m., one of the most important debates in the history of our nation got underway. For approximately two hours, the fate of millions of future lives hung in the balance as oral arguments in the case of Dobbs v. Jackson Women’s Health Organization were made before the Supreme Court.
As a way of brief background, the Dobbs case is the single greatest challenge to Roe v. Wade since the Planned Parenthood vs Casey decision in 1992, the subsequent ruling that affirmed the core holdings of Roe, that is, the “right” for a woman to have an abortion.
The Dobbs case will decide the constitutionality of a 2018 Mississippi state law that banned abortions after the first 15 weeks of pregnancy. The 15-week ban has been struck down by two lower federal courts. The Supreme Court is the final stop and the last chance for this life-saving law to be upheld.
As John Wesley Reid, Senior Editor for the Standing for Freedom Center, explained, “A major component to Roe was the issue of viability. In Dobbs, the Supreme Court has agreed to address the question: ‘Whether all pre-viability prohibitions on elective abortions are unconstitutional.’”
Arguing the case on behalf of Thomas Dobbs, the State Health Officer of the Mississippi Department of Health, was Scott Stewart, the Solicitor General of Mississippi. Arguing on behalf of the petitioners, the abortion clinics in Mississippi, was Julie Rikelman, Litigation Director for the Center for Reproductive Rights, and Elizabeth Prelogar, Solicitor General of the Biden Administration’s Department of Justice.
A full transcript of the oral arguments can be found here.
While a decision is highly unlikely to be handed down until June, as you go about your day today and continue to pray for the end of legal abortion in the United States, here are the top four takeaways that Christians should be tracking from yesterday’s hearing.
Solicitor Stewart opened the arguments with a crystal clear and morally courageous call to action for the Justices: The time has come to end the 50 years of death and disaster that Roe has wreaked on the soul of our nation.
While he was gracious and soft-spoken, Stewart pulled no punches. Right out of the gate, he put it all on the line in some of the boldest words uttered on the issue of abortion in the Supreme Court chambers: “Mr. Chief Justice, and may it please the Court: Roe v Wade and Planned Parenthood v Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise. For years, they’ve kept this Court at the center of a political battle that it can never resolve. And 19 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.”
Throughout his opening statement, and during the questioning from the Justices, Stewart stayed focused on one main point: Whether or not the Supreme Court should have ever taken it upon themselves to “settle” the issue of abortion for all 50 states in the first place. His argument? Absolutely not. They overreached in their 1973 ruling on Roe and they doubled-down on that mistake in the 1992 ruling on Planned Parenthood vs. Casey. But now the time has come to make it right. Now the time has come to let the American people, in our federated system, decide this hotly debated issue.
Again, Stewart argued that “Roe and Casey‘s core holding, according to those courts, is that the people can protect an unborn girl’s life when she just barely can survive outside the womb but not any earlier when she needs a little more help. That is the world under Roe and Casey. That is not the world the Constitution promises. The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people. Roe and Casey have failed, but the people, if given the chance, will succeed. This Court should overrule Roe and Casey and uphold the state’s law.”
While some pro-life activists may be dismayed that Stewart didn’t argue more vehemently for the personhood of an unborn child, bear in mind that that is not the question at hand in this case. The core question of the Dobbs case is whether or not states have the constitutional right to enforce pre-viability prohibitions on elective abortions. If states do have this right, guaranteed to them and to the citizens living within, the Supreme Court should have never taken it away in the Roe ruling. To do so was an egregious mistake and, despite the fact that it has been “precedent,” it should be overturned now. In short, it is never too late to do the right thing.
If you’ve been an active participant in the pro-life movement for any period of time, you are probably familiar with the term stare decisis. But even if you just tuned into this debate, and the arguments yesterday, it would have been impossible to miss it. Stare decisis is a Latin term that means to “stand by things decided.” In short, it is the doctrine of precedent.
And, because the pro-abortion side can’t afford to argue on the merits of abortion itself, or on the constitutional question of the right to take a life, they place all of their eggs in the basket of “precedent.”
This was how Rikelman opened her arguments against Dobbs: arguing precedent. She said, “Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent. Mississippi asks the Court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will. The Court should refuse to do so…stare decisis presents an especially high bar here.”
The argument presented against Dobbs, and against overturning Roe and Casey, was essentially the legal version of “This is how we have always done it.” But when it comes to matters of life and death, this is a terrible argument. If the Supreme Court made a grave mistake in a previous ruling, they have the responsibility — when presented with another, similar case, to get it right — to fix it.
Justice Alito pressed Prelogar, the top attorney in our nation, on this point. Amazingly, Alito essentially got her to take the position that the Supreme Court should have allowed racist rulings like Plessy v. Ferguson to stand, forever, just because they were “precedent.”
(Plessy v. Ferguson was an 1896 Supreme Court ruling that said state-mandated segregation laws did not violate the equal protection clause of the Fourteenth Amendment. The precedent, based on the legal doctrine “separate but equal,” was overturned over 50 years later in the 1954 case Brown v. Board of Education).
“Is it your argument that a case can never be overruled simply because it was egregiously wrong?” Alito asked Prelogar.
Prelogar responded by saying, “I think that, at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn’t done so in this case.”
Alito: “Really? So, suppose Plessy v. Ferguson was re-argued in 1897, so nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?”
Now, in response to that, Prelogar did say, “It certainly was egregiously wrong on the day that it was handed down, Plessy.” But when pressed further by Alito, Prelogar was unable to apply the same logic to Roe and Casey.
Alito followed up: “Would you answer my question? Had it come before the Court in 1897, should it have been overruled or not?”
Prelogar finally answered, “I think it should have been overruled, but I think that the factual premise was wrong in the moment it was decided, and the Court realized that and clarified that when it overruled in Brown.”
That is truly an amazing sentence, and the whole interchange, on pages 91 and following of the transcript, are worth reading.
Prelogar, desperately trying to defend abortion on the grounds of precedent, twists herself into a pretzel trying to have her cake and eat it too (to mix my food-based metaphors). She, of course, can’t say it was wrong for the Court in 1954 to overturn the racist ruling of 1896. But, at the same time, she knows that if she admits that it is appropriate for the Court to overturn a previous ruling on the facts and the merits of the case, she loses her entire argument of stare decisis.
Which brings us to my main point here: The pro-abortion side clearly has no real arguments. Justice Sotomayor desperately tried to frame the belief that an unborn child was a living human as an argument based in “religion,” but of course there is nothing “religious” about recognizing that an unborn child is a living human being. Even worse, she compared unborn children to brain-dead adults when trying to dismiss the reality of fetal pain. Sadly, Sotomayor sounded more like an inarticulate spokesperson for the radical death-worshipping cult of Planned Parenthood than a Justice of the Supreme Court, sworn to uphold and defend the Constitution.
But, to reiterate, the main argument of the pro-abortion side on display in the oral arguments was stare decisis. Thus, we must ask, is it truly “unprecedented” to overrule “precedent?” Of course not. A recent CNN article even reportedthat “The Supreme Court has overruled more than 250 of its own cases throughout American history, including almost four dozen that lasted longer than the 48 years that Roe v. Wade has been in effect.”
So, keep this in mind going forward: Precedent should never get the last say in any Supreme Court case, let alone a case that deals with such weighty and moral matters as the life and death of the most innocent and vulnerable among us. Just because the Supreme Court ruled wrongly in 1973, and again in 1992, is no reason for it to do so again in 2021.
While it’s important to stay grounded and prayerful, many serious legal scholars and long-term Court watchers were rather optimistic about the outcome of the arguments.
Roger Severino, Senior Fellow at Ethics and Public Policy Center (EPPC), former Director of the HHS Office for Civil Rights, and former DOJ Civil Rights trial attorney, tweeted, “The pro-life movement should rejoice with how the SCOTUS oral argument went. I count six votes upholding the Mississippi law and 5 to 6 directly overturning Roe. Only Sotomayor defended the more extreme arguments of the pro-abortion side (and poorly).”
Ed Whelan, also with the EPPC, wrote in National Review, “Nothing from Justices Thomas, Alito, Gorsuch, Kavanaugh, or Barrett set off any alarm bells in my mind. On the contrary…. Justice Gorsuch on two or three occasions seemed to signal that he sees no middle ground between reversing Roe and Casey, on the one hand, and applying them to invalidate the Mississippi law, on the other.”
I agree with both of their assessments. Having listened to the arguments myself, I was pleased with what I heard from the five conservative Justices. Each of them sounded more than willing to uphold the Mississippi law. None of them sounded unwilling to overturn a precedent. And on the whole, I would argue that we, the pro-life movement, can have some grounded optimism that the five conservative Justices — Thomas, Alito, Gorsuch, Kavanaugh, and Barrett — would vote to overturn Roe and Casey. However, there is one concern: Chief Justice Roberts.
The final big takeaway from the arguments is this: Christians need to be praying that Chief Justice Roberts doesn’t try to find a middle ground that simply doesn’t exist in some misguided effort to play the role of an “institutionalist.”
Whelan noted that this seems to be what Chief Justice Roberts was after in his line of questioning: “The Chief seemed to be searching for a middle ground that would enable him to vote in favor of the Mississippi 15-week ban without overturning—or at least without declaring the overturning of—Roe and Casey.”
Bear in mind that, as the Justices vote to decide this case, it matters a great deal if Chief Justice Roberts is on the winning side of the vote. He may try to convince the other five conservative Justices to join him in a narrower ruling, allowing him to write the deciding opinion. However, if the decision is 5-4, with the conservatives prevailing, then Justice Thomas will have the right to write the decision, and we can be confident he will write it as strongly as possible, completely overturning Roe and Casey.
Pray that Chief Justice Roberts either is willing to go all the way, or get out of the way, so that the Court can finally make right a 50-year wrong that has cost our nation over 60 million lives. As Ronald Reagan famously said, “Now is a time for choosing.” We can only hope and pray that Chief Justice Roberts chooses life.