I just listened to all 2 hours of the recorded oral arguments of “Dobbs v. Jackson Women’s Health Organization” that happened today. The case is a major one in which the state of Mississippi is explicitly asking the Supreme Court to overturn Roe v. Wade. I found it deeply interesting and I would recommend those who are interested in the topic give the whole thing a listen rather than merely searching for soundbites or summaries.
I am not at all a legal scholar. Looking in on this from the outside, it’s clear that there are many different factors going into the arguments here. I want to make my own comments, and leave them here simply as someone with an interest in the case and who’s seeking to learn more.
I have become increasingly convinced that the topic of abortion frequently leads to so much heat in discussion that it becomes nearly impossible to have a reasoned conversation about it. Listening to these oral arguments help to put this in perspective, because some of it showed how such a reasoned discussion could take place.
Mississippi’s argument largely seems to be based upon the notion that because the issues is contentious, it ought to be left to the states or “the people” to decide. This very reasoning was used at multiple points in answers to questions. I find this deeply disturbing, because it suggests that any issue that is not explicitly outlined in the Constitution is beyond the purview of the Courts so long as it is politically contentious enough. On the flip side, I have some sympathy for the question of whether contentious issues ought to be decided through legislation rather than through courts.
The questions posed to Elizabeth Prelogar, U.S. Solicitor General who was answering questions in behalf of Jackson Women’s Health Organization, focused on two lines of reasoning. One, the question of “viability” as a “principled line” to be drawn for when abortions could be considered constitutionally defended or not. I found the question-and-answers centered around this to be especially important. Essentially, Prelogar noted that the Court has to establish a line and has done so with Roe v. Wade and Casey. Because that line is established, the argument goes, the precedent is there and it allows for a fairly clear way to delineate when it is or is not Constitutionally protected.
Some questions pressed on this definition of viability, because the question then becomes whether that line of viability could move. Justice Sotomayor noted that the scientific opinions related to fetal pain were controversial enough to be largely discounted in moving the line earlier. Prelogar argued for viability as a line because earlier lines would disproportionately impact classes of women based upon various reasons (eg. wealth, access to health care, age, and the like).
The second line of questioning posed to Prelogar was centered on the history/precedent of the cases and why and when something like Roe v. Wade could be overturned. Justice Sotomayor noted that the notion that the court could overturn something based upon political shifting winds would deeply impact the credibility of the court going forward. Other questions posed to Prelogar pursued various reasons a case might be overturned, and whether a case could be overturned simply because it was seen as egregiously mistaken in its reasoning to begin with.
I thought here it was interesting to see that Prelogar shifted to arguing that the Court has to act upon the lengthy precedent on Roe v. Wade and Casey. To overturn them, there has to be some overriding reason to do so, and because the arguments from Mississippi appear to be the same as or similar enough to those arguments heard in prior cases that they don’t actually bring a compelling reason to overturn prior cases.
My own personal takeaways were that I thought each side made several compelling points. For one, viability as a standard seems somewhat shifty. As medical science progresses, viability can continue to be pushed further in time such that 15 weeks or earlier could be medically viable. That would seem to make this whole challenge a moot point. As I understand it from some of the arguments presented here, though, viability as defined in Roe v. Wade was based upon trimesters, while Casey made it into a more tenuous “viability” standard unbound to trimesters. That means that, theoretically at least, medical technology could push this line back. If I were on the Supreme Court–and there are very good reasons why I’m not–my concern with this specific case would be centered around the question of how we can have a Constitutional right that is in principle able to shift around with medical technology.
Second, it does make me very nervous that, at least according to one of the people (I’m sorry, I forget which) discussing this case in oral arguments today, Mississippi’s legislature both in the House and Senate explicitly had someone saying they’re bringing this case now because of the changed dynamics in the Supreme Court. I believe it was Justice Sotomayor who pointed this out, and it does deeply concern me that lawmakers would see apparently changed political dynamics on the Supreme Court as an in to change certain policies. It seems obvious to some extent that that might make a difference, but to make it explicit essentially says that the Supreme Court of the United States is a partisan organization which will submit to the changing whims of the political times so long as a President can get their favored partisans in the Court. That ought to be deeply alarming for any American. If it is true that the reason to challenge things in the Supreme Court is due to its partisan nature, that effectively turns the Court into a tool of political manipulation and removes any semblance of legal objectivity from the Court’s decision making processes. That in itself would be disastrous.
If you’ve read this far, I appreciate you taking the time to do so. Please let me know your own thoughts in the comments. I have many other ruminations, but articulating them right now feels beyond me.