The End of Roe? Five Things to Listen for During the Dobbs Oral Argument

The U.S. Supreme Court will be entertaining oral arguments on Wednesday, December 1, in Dobbs v. Jackson Women’s Health Organization, at 10 a.m. ET in what is undoubtedly the most important abortion case since Roe v. Wade was decided in 1973. You can listen to it live here.

The constitutional challenge to Mississippi’s ban on abortion after 15 weeks gestation is partly about whether the 2018 law should be struck down because it is incompatible with the holdings of Roe and the 1992 case of Planned Parenthood v. Casey. Nobody’s really arguing that it is compatible, and that’s what will make the court session on December 1 so important and so interesting.

If you’ve never sat through or listened to an appellate court hearing before, it can be highly technical and loaded with legal buzzwords, so here are five things to listen for to help you understand what’s going on behind the questions in this case.

Count to five. Most people know that to win at the Supreme Court, you need to get five votes out of the nine justices, so court-watchers will be hanging on to every question from the justices for clues as to what they’re thinking. But we’re not starting from a blank slate here.

Justice Clarence Thomas has been on record since 1992 saying that the U.S. Constitution contains no “right to abortion.” Likewise, the three most liberal justices – Sonia Sotomayor, Elena Kagan and Stephen Breyer – have strongly supported abortion in every case they’ve helped decide.  That leaves five justices to key in on – Chief Justice John Roberts, and associate justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, who have all supported regulations in the past that impose limitations on abortion.

But none of the five have ever opined as to whether Roe and Casey were wrongly decided and ought to be overturned. Will any of their questions reveal what they’re thinking on this important issue?

Overturning precedent. Most of us understand that the justices rely on past decisions to decide new cases with similar issues. Those past cases are called precedents, and the legal doctrine that loosely governs judges on this issue is called stare decisis, which is Latin for “to stand by things decided.”

Those terms will probably be heard often during Wednesday’s hearing, because even justices on the nation’s highest court don’t always agree when it is necessary to adhere to precedents or reject them as incorrectly decided. For example, the “separate but equal” racial doctrine that the high court affirmed in 1896 in Plessy v. Ferguson took 58 years to overturn, but the court did so in 1954’s famous case of Brown v. Board of Education. And nobody these days argues that Plessy was anything other than wrongly decided.

In Dobbs, the issue before the justices is whether to overturn Roe and Casey in considering whether the state of Mississippi has the constitutional right to prohibit abortion after 15 weeks. You may hear many questions from both the liberal and conservative sides of the bench about precedent and stare decisis. Pay special attention to the questioning on this issue from the five unknown votes – Roberts, Alito, Gorsuch, Kavanaugh and Barrett – for clues as to how they might be thinking on this crucial aspect of the case.

Viability. Another word you will hear a lot during oral argument is “viability,” referring to the generally accepted point in a pregnancy when a baby could successfully live outside the womb with medical help. Today that’s generally considered to be around 24 weeks gestation, although there have been cases of babies born as early as 21 weeks who have survived.

Viability was also the arbitrary legal standard set by the court in Casey for the point at which a state’s interest in protecting “potential life” justifies significant restrictions on abortion, up to and including prohibition. Will the justices criticize the arbitrariness of the Casey standard and indicate a willingness to toss it out? If so, will they simply replace it with another arbitrary standard or do the right thing by declaring that the Constitution does not guarantee a right to abortion, leaving the issue to the democratic process?

Undue burden. According to Casey, any law or restriction on abortion prior to viability that places a “substantial obstacle” on a woman seeking an abortion is an “undue burden,” and must be struck down as unconstitutional. You may hear a lot of questioning from the justices about the Mississippi law creating an “undue burden,” but perhaps more importantly, listen for objections to applying such a vague standard in the first place. It’s a wildly subjective standard that boils down to the personal opinions of the justices, and it’s just another indication that the court’s abortion jurisprudence is hopelessly mired in made-up rules and tests that don’t apply to any other subject matter on the court’s docket.

The court’s “legitimacy.” In 1992 the plurality opinion in Casey gave as one of its reasons for continuing to uphold the basic right to abortion decided in Roe that the court’s “legitimacy” was at stake.

“The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands,” the plurality opinion reads.

Legitimacy is probably the weakest argument any court has ever come up with for continuing to uphold a bad decision in the wake of years of continuing legal criticism. One of the reasons that federal judges have lifetime appointments is so they cannot be swayed by public opinion or the fear of political punishment. If this subject comes up at Wednesday’s oral argument, listen for any of the justices’ comments that might hint at either a continuing concern over this or a complete rejection of the argument.

When the dust clears after Wednesday’s arguments, there will be time to digest what questions were asked, and how they were answered, and which way key justices appear to be leaning. But we won’t know anything for sure until the court’s opinion is issued, which probably won’t be until the end of June 2022.

Pray for this case to correct the injustice that is Roe v. Wade. And pray for a continuing move of the Holy Spirit in this country that will one day make abortion in this country not only illegal, but unthinkable.

Photo from The Supreme Court.