This morning, as thousands demonstrated outside the U.S. Supreme Court, the justices inside heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a case which involves a Mississippi law that bans almost all abortions in the state after the 15th week of pregnancy.
While the law alone is controversial, the state has also asked the high court to overturn Roe v. Wade, which legalized abortion nationally in 1973, and Planned Parenthood v. Casey, in which the Supreme Court ruled in 1992 that the Constitution protects the right to abortion before a fetus becomes viable.
Mississippi Solicitor General Scott Stewart kicked off arguments by pointing out that Roe and Casey have “no basis in the Constitution,” and therefore, “haunt our country.” In reversing the court’s abortion precedents, Stewart suggested the democratic process would be restored, and that states would be able to legislate abortion based on the consensus of the people.
The court’s liberal justices—including Stephen Breyer, Sonia Sotomayor, Elena Kagan—were quick to pounce on Stewart. But curiously, their rebuttals were less about the Mississippi law in question, or even the constitutionality of Roe and Casey, but more about how the court would be perceived if it overturned its previous rulings.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor asked.
A term that came up frequently was stare decisis, which is Latin for “stand by things decided.” Breyer, Sotomayor and Kagan argued that the court must stand by this doctrine of precedent, lest it “subvert the court’s legitimacy,” according to Breyer.
Next up was Julie Rikelman, senior director for the Center for Reproductive Rights, on behalf of Jackson Women’s Health Organization. She fielded a lot of questions from justices about the “viability line.”
Chief Justice John Roberts questioned Rickelman on why Jackson Women’s Health considers the state’s 15-week mark an insufficient amount of time to obtain an abortion, pointing out that 15 weeks is the “standard that the vast majority of other countries have.”
Rickelman disagreed, falsely stating that American abortion laws are in step with the international mainstream.
In reality, the U.S. is one of only seven countries—alongside North Korea, China, Canada, Vietnam, the Netherlands and Singapore—that allow elective abortion after the 20th week of pregnancy.
Justice Amy Coney Barrett, considered a key vote in this case, questioned Rickelman on why “safe haven” laws, which protect parents who surrender unwanted infants to hospitals or other designated places against criminal prosecution, don’t resolve the “burdens of parenting” for those who wish to have an abortion for that reason.
Rickelman responded by arguing that the risks of pregnancy are more of a burden than parenting itself.
Next was U.S. Solicitor General Elizabeth Prelogar, who argued on behalf of the Biden administration, which is supporting the clinic.
She used the 14th Amendment’s due process clause to assert the right to abortion. Abortion speaks to a woman’s constitutional right to “liberty,” she claimed.
Students for Life of America (SFLA) tweeted out the portion of the clause Prelogar was referring to: “No one shall be ‘deprived of life, liberty or property without due process of law.’”
“No one shall be deprived of LIFE,” SFLA quipped. “Did ya get that?”
When Stewart came back for his rebuttal, he countered both Rickelman and Prelogar who argued poor women often cannot afford contraception.
The lowest cost for an abortion procedure at Jackson Women’s Health is $600, he said, with additional costs related to travel and taking time off work. That’s significantly higher than the cost of most contraceptives.
Justice Brett Kavanaugh summed up the decision before the court: “You can’t accommodate both interests. You have to pick. That’s the fundamental problem. And one interest has to prevail over the other at any given point in time. And that’s why this is so challenging.”
A decision isn’t expected until the end of June, but Franklin Graham is calling on Christians to pray for the nine justices to “have the courage and conviction to protect the lives of future generations.”
“By six weeks, a child has a beating heart, a developing brain and spinal cord,” he added. “At 10 weeks the child has arms, legs, fingers, toes and can kick. By 15 weeks, the baby has a nose, lips, eyebrows, eyelids and can feel pain, yawn and suck a thumb. I’m asking every Christian to PRAY for the Supreme Court to uphold the Mississippi law and forever change what Roe v. Wade has done to this nation.”
