As the wait begins for a decision in the Dobbs v. Jackson Women’s Health Organization abortion case, close attention will be paid to the comments and questions of three conservative justices on the U.S. Supreme Court that some observers view as possible swing votes: Chief Justice John G. Roberts Jr., and Associate Justices Brett Kavanaugh and Amy Coney Barrett.
At issue is a 15-week abortion ban passed in Mississippi, which challenges the court’s precedent of allowing abortions before viability, roughly 24-28 weeks into pregnancy. Pro-life groups are hoping the court, where conservative appointees have a 6-3 majority, will strike down Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide.
A number of questions from the justices focused on the principle of stare decisis, a Latin phrase roughly meaning “to stand by things that have been decided,” and understood to mean that the court generally stands by its own precedent.
Here are some of the highlights of what Roberts, Kavanaugh, and Barrett said during the proceeding:
Chief Justice John G. Roberts Jr.
Roberts to Stewart: “On stare decisis, I think the first issue you look at is whether or not the decision at issue was wrongly decided. I’ve actually never quite understood how you evaluate that. Is it wrongly decided based on legal principles and doctrine when it was decided or in retrospect? Because Roe — I mean, there are a lot of cases around the time of Roe, not of that magnitude but the same type of analysis, that went through exactly the sorts of things we today would say were erroneous, but do we look at it from today’s perspective, it’s going to be a long list of cases that we’re going to say were wrongly decided.”
Roberts to Rikelman: “…if you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice, opportunity to [choose], and why would 15 weeks be an inappropriate line? Because viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”
Roberts to Rikelman: “…I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability. It is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea. And I don’t think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those are your — share that particular time period.”
Roberts to Rikelman: “It is certainly true that we cannot base our decisions on whether they’re popular or not with the people. Casey seemed to say we shouldn’t base our decisions not only on that but whether they’re going to — whether they’re going to seem popular, and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent, sort of a super stare decisis, but it’s super stare decisis for what are regarded as — by many, as the most erroneous decisions. Do you think there is that category? Is there — or is it just normal stare decisis?”
Roberts to Prelogar: “…your discussion of the reliance interests and the ability of women and men to control their lives in reliance on the right to an abortion, the argument would not be as strong, I think you’ll have to concede, given what we’re talking about, which is not a prohibition; it’s a 15-week line. Is that right?”
Justice Brett Kavanaugh
Kavanaugh to Stewart: “And as I understand it, you’re arguing that the Constitution is silent and, therefore, neutral on the question of abortion? In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process? Is that accurate? … [I]f you were to prevail, the states, a majority of states or states still could, and presumably would, continue to freely allow abortion, many states; some states would be able to do that even if you prevail under your view, is that correct?”
Kavanaugh to Rikelman: “I think the other side would say that the core problem here is that the Court has been forced by the position you’re taking … to pick sides on the most contentious social debate in American life and to do so in a situation where they say that the Constitution is neutral on the question of abortion, the text and history, that the Constitution’s neither pro-life nor pro-choice on the question of abortion, and they would say, therefore, it should be left to the people, to the states, or to Congress … and we [the Supreme Court] should be scrupulously neutral on the question … I want to give you a chance to respond to that.”
Kavanaugh to Rikelman: “I want to ask a question about stare decisis … history helps think about stare decisis … and the history of how the Court’s applied stare decisis, and when you really dig into it, the history tells a somewhat different story, I think, than is sometimes assumed. 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 versus Carr, which set the stage for one person/one vote. West Coast Hotel, which recognized the states’ authority to regulate business. Miranda versus 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 versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Giddeon versus Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage. In each of those cases…the Court overruled precedent. … So I assume you agree with most, if not all, the cases I listed there, where the Court overruled the precedent. So the question on stare decisis is why, if … we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this Court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?”
Kavanaugh to Prelogar: “When you have those two interests at stake and both are important, as you acknowledge … why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this? And there will be different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently. Why is that not the right answer?”
Barrett to Stewart: “I have a question … about stare decisis. And I think a lot of the colloquy you’ve had with all of us has been about the benefits of stare decisis, which I don’t think anyone disputes … You know, we have Plessy, Brown. We have Bowers versus Hardwick, to Lawrence. But, in thinking about stare decisis, which is obviously the core of this case, how should we be thinking about it — I mean, Justice Breyer pointed out that in Casey and in some respects, well, it was a different conception of stare decisis insofar as it very explicitly took into account public reaction. Is that a factor that you accept, or are you arguing that we should minimize that factor?. .. [Is there a distinct set of stare decisis considerations applicable to what the Court might decide is a watershed distinction?”
Barrett to Rikelman: “… Petitioner points out that in all 50 states, you can terminate parental rights by relinquishing a child after abortion, and I think the shortest period might have been 48 hours if I’m remembering the data correctly. So it seems to me, seen in that light, both Roe and Casey emphasize the burdens of parenting, and insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy. Why don’t the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden. And so it seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion. Why didn’t you address the safe haven laws and why don’t they matter?”
Barrett to Rikelman: “I don’t understand why 27 weeks is less workable than 24.”
Barrett to Prelogar: “… I asked Ms. Rikelman this question too, but I’m not sure that I fully understand the government’s position or Ms. Rikelman’s position. So, on pages 18 and 19 of your brief, you talk about reliance interests and you quote some of the language from Casey about a woman’s ability to participate in the social and economic life of the nation. And I mentioned the safe haven laws to Ms. Rikelman, and it seems to me I fully understand the reliance interests. There are the airy ones Justice Kagan was referring to and then there are the more specific ones about a woman’s access to abortion as a backup form of birth control in the event that contraception fails so that she need not bear the burdens of pregnancy. But what do you have to say to Petitioners’ argument that those reliance interests do not include the reliance interests of parenting and bringing a child into the world when maybe that’s not the best thing for her family or her career?”
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