What Decision Will the Justices Make in Dobbs v. Jackson?

            The Justices on the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization today in an argument that lasted almost two hours. Dobbs challenges the constitutionality of the Gestational Age Act passed by Mississippi, which bans most abortions after gestation of 15 weeks.

            In their article published at The Daily Signal, Thomas Jipping and Sarah Parshall Perry at The Heritage Foundation listed the key takeaways from the case. They indicated that most of the argument today was a question of whether the court decisions in Roe v. Wade and Planned Parenthood v. Casey were wrong and should be overturned. 

The validity of those precedents is on the line because the court in both decisions determined that any abortion ban prior to “viability” (when the unborn child can potentially live outside the womb) is unconstitutional. The Mississippi ban draws the line well before viability, generally understood to be at about 24 weeks.

            The court’s decision is not expected before June, and there are three ways that they could decide according to Jipping and Perry: (1) The court upholds Mississippi’s abortion ban by overruling Roe and Casey. (2) The justices reach the same result by narrowing or modifying – rather than overruling – those precedents. (3) The court strikes down the Mississippi ban by reaffirming Roe and Casey.

            Jipping and Perry stated that the justices “poured cold water” on option two when they “rejected as unworkable any ‘half measures’ that would substitute something else for the Roe-Casey standard.” It appears to be a “stay or go” decision about Roe and Casey. The court will use an “established … two-step processed for determining whether a precedent should be overruled.”

The first step is whether that precedent was wrongly decided. On that, Mississippi Solicitor General Scott Stewart’s opening words were that Roe and Casey “haunt our country” and have no foundation in the text, structure, or history of the Constitution.

Significantly, neither Julie Rikelman, the attorney for the abortion clinic challenging the law, nor U. S. Solicitor General Elizabeth] Prelogar made much of an attempt to defend either case on its merits.

The second question is whether a wrongly decided precedent should be overruled, and the court has identified several factors or criteria to help answer that question.

            Jipping and Perry indicated that several justices spoke out on the second question. The comments by the justices, as reported by Jipping and Perry, are interesting and may indicate how the individual justices will vote on the decision.

·         Breyer argued that the court should be “more unwilling” to overrule what he called “watershed” precedents, so that the public does not think the justices are simply responding to political pressure.

He might have been implicitly conceding that Roe and Casey could not survive application of the court’s traditional analysis.

·         Chief Justice John Roberts observed [that] Breyer’s position actually suggests that the more egregiously wrong a precedent is, the more the court should resist overruling it.

·         Justice Brett Kavanaugh explained that some of the court’s most significant decisions had themselves overruled precedents, citing an extensive list of decisions that included Miranda v. Arizona, Lawrence v. Texas, and Obergefell v. Hodges.

His citations also included Brown v. Board of Education, which effectively overruled the “separate but equal” principle established by Plessy v. Ferguson.

·         Justice Amy Coney Barrett noted that states now have “safe haven laws that allow mothers to relinquish newborn babies to hospitals or other designated safe havens without criminal prosecution within a few days of delivery instead of abandoning them.

Barrett suggested that, by separating pregnancy form parenthood, safe haven laws may diminish what the Supreme Court in Roe called the “detriment” facing women of carrying an unwanted pregnancy to term.

Barrett also asked whether upholding the Mississippi abortion ban would necessarily raise questions about the validity of other Supreme Court precedents.

·         Justice Sonia Sotomayor tried to argue that it is impossible to know if an unborn child’s reaction to physical stimuli shows that he or she feels pain….

She might have been unaware of the current research on the subject, which shows that unborn children may indeed feel pain at as early as 12 weeks.

            Jipping and Perry suggested that the “most important question in this case concerns the proper setting for all of these questions, debates, issues, values, and arguments: Is it the legislature or the judiciary?” Another question would be, is abortion a state or federal issue?

            The Constitution left all matters in the hands of the “American people and their elected representatives” unless they are clearly stated in the Constitution as being the responsibility of the federal government. Dobbs v. Jackson is an opportunity for the Supreme Court to right the constitutional wrongs made in Roe and Casey. They should overrule Roe and Casey and send the question of abortion back to the states where it belongs.

            There is little doubt that overturning Roe and Casey will cause liberals to melt. We can expect that they will send out the BLM (burn, loot, and murder) to riot in the streets and make life miserable for the people. However, if America does not right this wrong and protect the unborn when it is given the opportunity to do so, God will hold Americans responsible. I pray that the justices will be courageous and do the right thing – no matter what!