“Roe v. Wade and Planned Parenthood v. Casey haunt our country.”
That was the opening of the oral argument in Dobbs, the most important abortion case in decades. Scott Stewart, the solicitor general of Mississippi, presented the oral argument on behalf of the state of Mississippi and took direct aim at two of the biggest legal precedents upholding abortion. “Roe and Casey have failed, but the people, if given the chance, will succeed,” Stewart said. “This court should overrule Roe and Casey and uphold [Mississippi’s] law.”
Numerous issues were covered during the oral arguments (the transcript takes up 109 pages) but there were three issues in particular that were of interest to the pro-life cause. Here is a summary of those issues.
The Issue
If the viability standard is thrown out, what will replace it?
What Was Said
Justice Thomas—the only justice on record as directly opposing Roe—asked what should replace the viability standard if the court chooses not to overturn Roe and Casey. Stewart proposed the standard should be rational basis review, the normal standard that courts apply when considering constitutional questions, which would test whether the government’s actions are rationally related to a legitimate government interest (in this case, protecting the life of the unborn). He acknowledged that it would likely be the undue burden standard, which holds that a legislature cannot make a particular law too burdensome or restrictive of a person’s fundamental rights.
Justice Kagan asked how the undue burden standard would work as a replacement to the viability standard. Stewart pointed out that the undue burden was the problem promoted by the Casey decision—which provided yet another reason to overturn Casey.
Julie Rikelman, a lawyer representing Jackson Women’s Health Organization, was asked by Justice Gorsuch about the undue burden standard. He noted it “has evolved over time too in ways the court has found difficult to agree upon.” Rikelman responded that the undue burden was not workable without the viability standard because it would allow the state to interfere with a woman’s “constitutional right” to an abortion.
Why It Matters
The exchanges on this issue showed that if viability were thrown out as the prevailing standard, it would be replaced by either the undue burden standard or rational basis review. From the pro-life side, the undue burden standard would not be ideal since it could limit what types of restrictions states could put on abortion. But the pro-abortion side could not, or would not, propose a better option because it considers abortion a sacrosanct constitutional right.
The Issue
What is the argument for keeping viability as the standard?
What Was Said
Stewart pointed out that viability was a peculiar standard since it neither has any basis in science nor is it “tethered to anything in the Constitution, in history, or tradition.” Rikelemn did not provide a defense of viability as a standard, but merely reiterated that it would undermine the fundamental right to abortion.
Justice Roberts pointed out that removing the viability standard would not necessarily remove a woman’s choice to have an abortion, which is the supposed concern of the pro-abortion side. Rikelman never directly responded to the point in a substantive way, but merely pointed out that moving the line before viability would restrict when a woman could have an abortion.
Justice Alito asked Rikelman to defend the viability standard as non-arbitrary. She replied that “the court had to set a line between conception and birth, and it logically looked at the fetus’s ability to survive separately as a legal line because it’s objectively verifiable and doesn’t require the court to resolve the philosophical issues at stake.”
Why It Matters
Even pro-lifers were shocked at how weak the pro-abortion side’s case is for maintaining the viability standard. Rikelman claims that viability is the appropriate standard because it is “objectively verifiable”—which even pro-choice bioethicists would admit is not necessarily true. But even if it were, there is no reason why the state should not have an interest in protecting the life of the unborn before viability (Rikelman even conceded that states have such a pre-viability interest). The pro-abortion side was given the opportunity to make the case that viability was a non-arbitrary standard—and failed miserably.
The Issue
Would it be improper to overturn such long-standing abortion precedents?
What Was Said
A significant portion of the discussion was about stare decisis, the principle that courts will follow their previous decisions. Several of the justices pondered how stare decisis should be considered in a case that could have monumental consequences.
Stewart pointed out that certain precedents have been overturned because they were obviously wrongly decided. “It’s saying this was wrong,” Stewart said. “It was wrong the day it was decided. We know it’s wrong today. And it’s led to all these terrible consequences. We should get rid of it.”
Rikelman’s rebuttal was that Roe was not wrongly decided because women have a constitutional right to abortion. Justice Kavanaugh observed that many previous injustices were righted when the court overturned precedent. Why would this situation be different? Rikelman answered that a “special justification” would be needed to overturn Roe and that none exists. When pressed, Rikelman returned to the claim that abortion was a fundamental right.
Justice Alito asked Elizabeth B. Prelogar, the solicitor general of the United States, “Is it your argument that a case can never be overruled simply because it was egregiously wrong?” Prelogar said it would require “materially changed circumstances.”
Alito then asked whether Plessy v. Ferguson (the 1896 decision that upheld the constitutionality of racial segregation) should have been overturned merely because it was “egregiously wrong.” After much hemming and hawing, Prelogar said, “[The Supreme Court], no, has never overruled in that situation just based on a conclusion that the decision was wrong.”
Why It Matters
The pro-abortion side essentially argued that (1) Roe could not be overturned because of stare decisis, (2) Roe could not be overturned because the material circumstance had not changed, and (3) Roe could not be overturned even if it was “egregiously wrong.” It’s unlikely the conservative justices were persuaded by an argument that could have been used to defend Plessy v. Ferguson.
Reasons for (Cautious) Optimism
If the court was going to strike down the Mississippi law, it could have done so without even taking up Dobbs. That it agreed to hear the case at all is a signal it will likely hand down a decision that allows states more latitude to impose abortion restrictions.
Could the court use this case to overturn Roe? It’s certainly possible. Justice Thomas voted to overturn Roe in 1992 in the Casey case and would almost surely vote the same way again. Justice Alito pointed out Wednesday that the “fetus has an interest in having a life,” signaling that he too might be willing to overturn Roe.
Justice Roberts appeared to focus on a less dramatic solution (tossing out the viability standard), but Justice Kavanaugh’s question implied that he might be willing to let states decide the abortion issue. Justice Barrett seemed to downplay the necessity of abortion for women’s rights and Justice Gorsuch, while more opaque, seemed to take for granted that the viability standard would soon be gone.
While pro-lifers should be careful about reading too much into the oral arguments, we have reason to be cautiously optimistic that at least five justices are ready to overturn the evil precedent of Roe. Pray that God will lead them to make the right decision next June.
The Gospel Coalition