On December 1, 2021, the U.S. Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization (docket sheet). Mary had a good roundup of legal commentator reaction to the argument.
I finally was able to listen to the argument on a long plane ride from San Diego to the east coast. You can listen to the audio here and read the transcript with some yellow highlighting by me as I listed to the audio.
Three questions were presented in the Petition for a Writ of Certriorari, but the court granted review only on the first question:
1. Whether all pre-viability prohibitions on elective abortions are unconstitutional.
2. Whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children, and the integrity of the medical profession and society should be analyzed under Casey’s “undue burden” standard or Hellerstedt’s balancing of benefits and burdens.3. Whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
That question, particularly to the exclusion of the others, seemed to be a signal that Roe v. Wade, which rested on viability, was on the table:
To summarize and to repeat:1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
As Andrew Sullivan pointed out in a substack article, Roe v. Wade has not achieved any consensus despite almost 50 years as the law of the land:
But the most salient evidence that abortion cannot be simply defined as a “women’s” issue is that there is absolutely no consensus among American women about it. Check out the long-term Gallup analysis of views on this question. It shows that a remarkably steady one-fifth of American women want all abortion banned by law. And that proportion has barely budged in 50 years. The other trend-lines in opinion are not quite as stable, but still relatively consistent. Over nearly half a century, the proportion of women who want some legal restrictions on abortion has gyrated between 45 and 63 percent. And the proportion favoring the full-on pro-choice position has wavered between 22 and 36 percent.So what is routinely presented in the MSM as the women’s position on abortion applies in fact to only around a quarter to a third of women…. It turns out that many more of us belong to the deeply conflicted middle than you’d ever surmise from the public debate.Do women favor legal abortion more than men? Yes — but not by much. The trend-lines look pretty similar over time between the two sexes, with marginally more men favoring some restrictions, and marginally fewer supporting no restrictions at all. How big is the gender gap? Well, it’s not appreciably bigger than those that Gallup records for the validity of same-sex marriage, for example. The cross-tabs from 2021’s Gallup poll show 73 percent support for marriage equality among women and 67 percent among men. And it would be weird to think of marriage equality as a “women’s” issue.So abortion is not exclusively a women’s issue; and it isn’t a minority rights issue either.
Despite the muddled support, for those who support Roe v. Wade it is the singular most important issue — you’ve seen the videos and the marches and the threats of “revolution” by a U.S. Senator. IF the Mississippi law is upheld, and particularly if in so doing the court holds that Roe v. Wade no longer is good law, there will be days and weeks and months of RAGE RAGE RAGE.
I think it’s fair to say the possible rage was evident during the oral arguments … from the ‘liberal’ Justices.
Remember “The Flight 93 Election,” the September 5, 2016, article in the Claremont Review of Books, by Michael Anton, writing at the time under the pseudonym Publius Decius Mus. The thrust of the concept of the Flight 93 Election was that whatever Trump’s faults, the alternative was definitively and certainly worse:
2016 is the Flight 93 election: charge the cockpit or you die. You may die anyway. You—or the leader of your party—may make it into the cockpit and not know how to fly or land the plane. There are no guarantees.Except one: if you don’t try, death is certain.
I kept thinking of that Flight 93 Election metaphor when listening to the questioning particularly from Justices Sotomayor and Breyer, and to a lesser extent Kagan. They rushed the proverbial cockpit door with their own oral arguments which barely contained questions, advocating not to touch Roe.
Listen to the audio, I think you’ll agree. They were desperate, seemingly knowing the end was near no matter what they did.
Sotomayor was the leader rushing the proverbial cockpit door, all but screaming “We’re all gonna die!” I’m referrring to this exchange (transcript pp 14-15, emphasis added):
JUSTICE SOTOMAYOR: –what hasn’t been at issue in the last 30 years is the line that Casey drew of viability. There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body, has been clearly set for –since Casey and never challenged.You want us to reject that line of viability and adopt something different. Fifteen justices over 50 years have –or I should say 30 since Casey have reaffirmed that basic viability line. Four have said no, two of them members of this Court.But 15 justices have said yes, of varying political backgrounds. Now the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices. The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsors said we’re doing it because we have new justices on the Supreme Court.Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?
The problem, of course, is that Roe v. Wade always was an exercise of political compromise, a compromise that never had clear popular support.
And the “stench” of politics has been injected into the system by those who support Roe v. Wade, starting with the disgusting treatment of Republican nominees from Robert Bork to Brett Kavanaugh. Every time a Republican makes a Supreme Court nomination, Democrats demand to know the nominee’s position on Roe v. Wade, it’s the central issue during hearings, media coverage, and protests.
Sotomayor’s argument seemed squarely aimed at Chief Justice Roberts, someone seen as subject (including on the Obamacare case) to political pressure about the legitimacy of the court. When it was 5-4, the four liberal justices (at the time including Justice Ginsburg) needed only to bring over one Justice to their side, which they frequently did in big cases (Roberts in Obamacare, Kennedy on same-sex marriage).
But Roberts isn’t the swing vote anymore. Nor is any one of the conservative Justices. It’s a 6-3 court since Barrett filled the Ginsburg seat. You need to bring two over, and the liberal justices seemed depressingly resigned that that might not happen.
My “hot” prediction? The Court 6-vote majority, in an opinion by Roberts, upholds the Mississippi law, but finds it need not reach the issue of whether Roe v. Wade should be overturned. There will be at least three, possibly four, Justices with concurring opinions that they would overturn Roe v. Wade as wrongly decided.
Roberts will push hard to gain consensus not to overturn Roe v. Wade explicitly, preferring in the interest of the Court to dismember it limb by limb.
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