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SCOTUS Hints at the Fate of Roe v. Wade

Joe Heschmeyer calls on his legal expertise to analyze what the justices last week about the case that could save countless babies' lives

On December 1, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health, a case involving a Mississippi law prohibiting most abortions after fifteen weeks. (You can read more on the background of the case here.) According to the Supreme Court decisions in Roe v. Wade and Planned Parenthood v. Casey, such a law is unconstitutional until fetal viability. Mississippi argued that this is a sign that Roe and Casey were wrongly decided and should be overturned.

In the lead-up to oral arguments, people were describing Dobbs as the case that could overturn Roe. How is that prediction faring so far?

The first striking feature of the oral arguments is that neither side gave much effort to defend Roe on its own merits. That makes sense, given that both pro-life and pro-choice legal scholars have long recognized that Roe v. Wade is simply a bad Supreme Court decision. Former justice Ruth Bader Ginsburg famously said the case “prolonged divisiveness and deferred stable settlement of the [abortion] issue” and that a “less encompassing” decision “might have served to reduce rather than to fuel controversy.”

The Court all but recognized that Roe was wrongly decided in the 1992 case Planned Parenthood v. Casey (which Ginsburg rightly described as “a retreat from Roe”). In it, only two of the Court’s justices (including Blackmun, the author of the Roe decision) were willing to reaffirm the so-called “trimester framework” of Roe v. Wade, while four other justices argued that Roe should be overturned. The two pro-Roe justices (partially) won the day back in 1992 with three other justices (O’Connor, Kennedy, and Souter), upholding “the essential holding of Roe v. Wade” but scrapping much of what Roe had actually decreed. As then-Chief Justice Rehnquist noticed in his dissent, the joint opinion “retains the outer shell of Roe v. Wade” while beating “a wholesale retreat from the substance of that case”:

Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to “strict scrutiny” and could be justified only in the light of “compelling state interests.” The joint opinion rejects that view. . . . Roe analyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court’s decision-making for 19 years. The joint opinion rejects that framework.

In short, Rehnquist argued that the Casey decision meant that “Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.” Thus, when the Court talks about whether to preserve or overturn Roe, the real discussion is whether to continue to prop up this façade, since the Court in Casey already overturned much of the actual Roe decision.

But if it’s such an open secret that Roe was wrongly decided, why doesn’t the Court just overrule it? Partly, the answer is that some justices (certainly Sotomayor, and probably Kagan and Breyer) believe that there is, or ought to be, a constitutional right to abortion of some kind . . . even if Roe got the nature and justification for that right wrong. But partly it’s also because of the idea of stare decisis, the principle of abiding by previously decided cases.

This principle isn’t legally binding (the Supreme Court can overrule itself whenever it sees fit) but is based on prudence. The Court doesn’t want to be seen as constantly vacillating, or as subject to the winds of shifting political views or Court membership. Parents are familiar with this struggle: if your spouse decides something with your kids, how wrong does that decision need to be for you not to back it? You don’t want to constantly undermine each other, but there may be times when your parental authority is more compromised by sticking to an obviously wrong decision that you or your spouse made.

As Justice Kavanaugh noted in oral arguments, there are a whole string of major Supreme Court cases that overturned precedent, so the principle of stare decisis goes only so far:

If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent. Brown v. Board outlawed separate but equal. Baker v. Carr, which set the stage for one person/one vote. West Coast Hotel [Co. v. Parrish], which recognized the states’ authority to regulate business. Miranda v. Arizona, which required police to give warnings when the right to—about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v. Texas, which said that the state may not prohibit same-sex conduct. Mapp v. Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Gideon v. Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell [v. Hodges], which recognized a constitutional right to same-sex marriage [sic].

If stare decisis wasn’t enough to protect prior Supreme Court precedent on marriage, why would it be enough to protect prior Supreme Court precedent on abortion? The pro-choice side, represented here by Julie Rikelman (Center for Reproductive Rights) and Elizabeth Prelogar (the solicitor general, arguing on behalf of the United States), found themselves in the odd position of defending it on almost traditional grounds: that this is what the Court has said for almost fifty years, and it should therefore continue to do so.

Rikelman claimed that “Casey and Roe were correct,” arguing that “for a state to take control of a woman’s body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty.” In contrast, Prelogar argued that the Court should uphold Roe even if the decision was “egregiously wrong.”

Rikelman failed to give a clear answer to the first hypothetical question posed to her. Justice Thomas referenced a real case (Whitner v. South Carolina), in which a woman was convicted of criminal child neglect for using crack cocaine during pregnancy, and asked if the state had a valid interest in enforcing the law if the child was pre-viability. Rikelman initially said that “the state may have” such an interest, since “the state can certainly regulate to serve its interests in fetal life and in women’s health.” That’s the opposite of what Roe decreed, and upon further questioning, she seemed to take her words back, ultimately shrugging the hypothetical off as irrelevant by saying that “those issues aren’t posed in this case.” But Thomas’s question points toward tension in the pro-choice position: why can a state keep you from harming unborn children pre-viability but can’t keep you from killing them?

This was not the last hypothetical Rikelman struggled to answer. Justice Gorsuch asked, “If, hypothetically, the Court were to extend the undue burden standard to regulations prior to viability, would that be workable or would that not be workable in your view?” In other words, what would happen if the Court allowed states to regulate pre-viability abortions, even strictly, as long as such regulations didn’t impose an “undue burden” on mothers seeking them, just like what’s currently allowed with regard to post-viability abortion laws? After initially “fighting the hypothetical” (in Gorsuch’s description), Rikelman finally said this would be unworkable.

Why did this matter? Because Chief Justice John Roberts seemed to be looking for some kind of middle way out—to somehow preserve a few bricks of the façade of Roe while still permitting the Mississippi law—while both sides of the argument stressed that this sort of “solution” wouldn’t actually fix anything.

Prelogar, the solicitor general, was more willing to bite the bullet on tough questions. But the results here were shocking. Justice Alito asked her, “Is it your argument that a case can never be overruled simply because it was egregiously wrong?” Remarkably, she affirmed this, arguing that “at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument.”

Alito then posed an important hypothetical: what if Plessy v. Ferguson, the notorious Supreme Court decision that permitted racial segregation, had been retried in 1897, the same year it was originally decided? As Alito put it, “would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?” After a lengthy back-and-forth, Prelogar finally admitted that even though it “was egregiously wrong on the day that it was handed down,” her argument was that the Court “has never overruled in that situation just based on a conclusion that the decision was wrong.” In other words, if you took Prelogar’s (and the U.S. the government’s) argument seriously, it would have been wrong to overturn the noxious “separate but equal” doctrine in 1897, and the Court should instead uphold a ruling it knows to be “egregiously wrong.”

As Catholics, we should be cautiously optimistic about the Court finally overturning Roe (and Casey). Everyone knew going in that the three “liberal” justices (Breyer, Kagan, and Sotomayor) were unlikely to have anything to do with overturning Roe. But oral arguments suggested that five of the justices (Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) appeared ready to overturn Roe, and neither side offered Chief Justice John Roberts a workable middle ground that he could stake between the two sides.

But as Scott Stewart, the attorney for the state of Mississippi, pointed out, Mississippi’s argument is not that “the Court somehow has the authority to itself prohibit abortion.” It is rather that the Court should be “scrupulously neutral” on the question of abortion, butting out and letting the people and their elected representatives decide what abortion laws should be in place. If the Court goes in this direction, the pro-life fight won’t be over. It’ll just be beginning.

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