On 1 December 2021, the United States Supreme Court heard oral argument in the case of Dobbs v Jackson Women’s Health Organization, the most momentous abortion case to come before the Court since Roe v Wade was decided in 1973. Dobbs is different from previous cases for at least one key reason: it doesn’t test the limits or scope of Roe, but rather strikes at the very heart of it. The law at issue is a Mississippi statute that prohibits abortions after 15 weeks of gestation, which is prior to the viability of the foetus. The State of Mississippi didn’t ask the Court whether or to what extent the law is permissible under Roe, because everyone agrees that it is not. Rather, Mississippi used the law to challenge the Court to vacate Roe and to return the issue of abortion access and restriction to the 50 states.
The argument before the Court hinged on three pivotal issues: whether even a wrong decision should be permitted to stand because of certain “reliance interests” created by the decision; whether vacating Roe will cause the Court to appear to be “politicised”, and thus illegitimate as a court of appeals; and whether “viability” is a meaningful standard for abortion adjudication.
The most prominent questions from the three justices who will certainly vote to strike down the Mississippi law (and thus reaffirm Roe), centred around the issue of stare decisis – whether and to what extent even a wrong decision should be reversed or vacated, based upon certain factors that militate against reversal.
Justices Breyer, Sotomayor and Kagan were far less interested in defending the reasoning of Roe than they were in asserting that Roe should stand even if it is wrong. This, they contended, is because women have a “reliance” interest in the expectation that they can abort a pregnancy when making important life decisions. To remove that expectation after nearly 50 years would be unjust and illegitimate, so the reasoning goes.
The Justices who are inclined to vacate Roe were not impressed by this argument. Justice Kavanaugh, for example, rehearsed a long list of prior Court precedents that had created similar reliance interests, but which the Court has reversed or vacated. Justice Alito suggested that if a prior case is “egregiously wrong”, it would be vacated regardless of how long it has stood of the interests it has created. Similarly, Chief Justice Roberts said, “on stare decisis… the first issue you look at is whether or not the decision at issue was wrongly decided”.
Justices Sotomayor and Breyer were also concerned that by vacating Roe the Court would appear to be bowing to politics and thus undermining the legitimacy of the Court as an independent arbiter of disputes. As Sotomayor rhetorically asked, will the Court “survive the stench” created by, as she perceives it, the political decision of the Court to vacate Roe. This is unquestionably the most ironic statement in the nearly two hours of argument. The US Supreme Court is already politicised, and Roe is the quintessential example of that politicisation. For the Court to declare that it has no place in the national abortion debate – and thus to vacate Roe – would be an important step in depoliticising the Court. Vacating Roe would begin to rehabilitate the legitimacy of the Court, which has been so severely damaged by Roe and its progeny.
Finally, both the abortion clinic’s attorney and the United States Solicitor General (representing the position of the Biden administration to uphold Roe) were pressed on the question of whether “viability” of the foetus makes any sense as a chronological line to be drawn between the permissibility and restriction of abortion. If, as the abortion advocates argued, the right to abortion is rooted in the “bodily autonomy” of the woman, what difference can the viability of the foetus possibly make? Justice Gorsuch positively begged the abortion advocates for an alternative standard, but they failed to articulate one.
It is never wise to make bold predictions about how the Court will rule based upon oral argument. Sometimes the justices are just thinking out loud, or playing devil’s advocate to test the consistency of the litigants’ position. That said, however, given the scepticism of at least five (if not six) of the nine Justices, it seems more likely than not that Roe v Wade will be vacated when the Court hands down its decision next June or July. But then the debate will shift to each of the 50 states, and abortion politics in the United States will once again proceed under full steam.
Ken Craycraft is the James J Gardner Family Chair of Moral Theology at Mount St Mary’s Seminary School of Theology, Cincinnati
This article first appeared in the January 2022 issue of the Catholic Herald. Subscribe today.
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