On Wednesday, December 1, the issue of how federal regulation should impact abortion in America was debated at the Supreme Court of the United States (SCOTUS). I want to devote this post to that event. For one like me who has been dismayed and frustrated over the seeming arbitrariness of recent SCOTUS decisions; the plodding pace of our judicial system’s resolution of practical constitutional questions; and the pervasiveness of the woke culture in our society that emphasizes social consciousness over fundamental reason…this event was a moment of celebration. It replenished and reinvigorated my faith in the basic premises of our nation. Regardless of what the ultimate SCOTUS decision will be on Dobbs v. Jackson Women’s Health Organization (JWHO), the presentation of this case sanctified and highlighted respect for the integrity of our constitution, the preciousness of human life in the form of a fetus, and the essential role that federalism plays in the uniqueness of America. There were literally moments in the course of this argument that I cheered out loud.
Dobbs v. JWHO will not decide the legality of abortion in our country. Sometime in June of 2022, the SCOTUS will render a decision on this case that will either uphold or overturn the state of Mississippi’s recently passed abortion law. Secondly, it will likely determine the legal validity of Roe v. Wade. If the Mississippi law is upheld, it will likely be a model for many states over the next few years to follow as the primary responsibility for regulating the practice of abortion will pass from the federal government back to the state legislatures. There will no doubt be some states that, given the opportunity, will outlaw abortion entirely. There will as well be some states establishing what will likely be the most liberal abortion laws in the civilized world.
Through the consideration of terms like stare decisis, reliance, viability, and quickening…the SCOTUS will also determine how strictly our constitution should be interpreted in the establishment of basic citizen rights. Of equal importance, they will consider that if a prior SCOTUS determination in that arena is now considered to be improper (not right or wrong, but improperly conceived)…should it be preserved simply on the basis of its longevity? These questions have arisen before in regards to abortion through the consideration of Planned Parenthood v. Casey; but most observers will acknowledge that while Casey addressed some significant aspects of abortion, it largely skirted the issue and stopped short of dealing directly, fundamentally, and decisively with the legality of the procedure in America. It also failed to clarify exactly “who” should determine the terms of that legality.
The argument of Dobbs before the SCOTUS went on for about two hours. Arguing to uphold the Mississippi abortion law was the Mississippi Attorney General Scott Stewart. He was the advocate for state regulation of abortion and the overturning of Roe. Arguing against the Mississippi abortion law and for the preservation of Roe as legal precedent was the attorney for the Jackson Women’s Health Organization, Julie Rikelman. Supporting Ms. Rikelman in her efforts was the Solicitor General of the United States, Elizabeth Prelogar. Representing the United States at the direction of the Biden Administration, Ms. Prelogar argued along with Rikelman to overturn the Mississippi law and to sustain the precedent value of Roe. All three of these players in this particular drama conducted themselves admirably in a professional sense; they argued their particular positions about as well as they could be argued. Forgive my redundancy, but…They each gave it their best shot. They left it all on the field. There is no reason for the SCOTUS to refrain from a full resolution of this abortion question based on any presumption of insufficient material to consider. Everything was placed on the table. It is now time to resolve this issue.
Professional SCOTUS watchers who have spent years attempting to divine the tea leaves from case presentations all warn that it is a mistake to predict a case outcome based on the questions posed from the SCOTUS Justices…but they all do it anyway. Following the presentations, it appears to be pretty well agreed upon that there are four Justices (Thomas, Barrett, Gorsuch, Alito) who are ready to uphold Dobbs and overturn Roe. It is equally agreed upon that there are three Justices (Sotomayor, Kagan, Breyer) who are inclined to overturn Dobbs and uphold the precedent value of Roe. Given the fact that a simple majority (five votes) is required to constitute a decision; the attention therefore falls upon Justices Kavanaugh and Roberts. Based on what I have read from those who are qualified to make such a guess, the prevailing opinion is that Kavanaugh is leaning solidly towards upholding Dobbs and overturning Roe. Given his history of seeking compromise and middle ground, oftentimes with infuriating logic, it is difficult to know where Roberts resides on this case. But after considering the questions he posed during the argument, most seem to agree that Roberts is leaning cautiously towards upholding Dobbs and overturning Roe.
The line appears to be shaping up with an expectation of a final 5-4, or possibly 6-3 super majority, vote that will uphold the Mississippi law and overturn Roe v. Wade. If this turns out to be accurate, it will be a watershed moment in our nation’s history. In football analogy, Roe v. Wade was a “pick 6” that created a constitutional right to abortion out of whole cloth. Planned Parenthood v. Casey was a “punt” with no satisfying or long-term resolution to the issue. Dobbs v. Jackson Women’s Health Organization holds the potential to be a game-winning touchdown following a long drive with a two-point conversion. It could be that emphatic.
By way of addressing this episode, I am going to first present the actual text and a good summary of the Mississippi abortion law; it is the central topic in this entire story. After literally years of waiting, this case represents what many pro-life advocates would term the “ideal vehicle” to be used in tearing down Roe. In plain terms, the law states that a woman in Mississippi may obtain an abortion within the first 15 weeks of pregnancy. After that date, abortion will be prohibited, with the exceptions of profound fetal abnormalities or conditions directly and adversely affecting the health of the mother. One way to interpret this law is to say that at 15 weeks, the fetus is developed to the point where it functions as a human being, it possesses awareness and can feel pain, and it should enjoy the liberty of life like all other human beings. To abort it beyond this point constitutes murder.
This particular Mississippi law will not satisfy the pro-life or the pro-choice advocates located at either end of the abortion argument spectrum. One extreme believes that life begins at conception and no abortions should occur. The other extreme believes abortion should be available upon demand up until the moment of delivery. But this law does represent a common sense, practical, and reasonable starting point to deal with an emotional and polarizing issue. Here is actual text followed by a short summary of the law; more details emerge in the following linked articles:
Text: https://legiscan.com/MS/text/SB2116/id/1846191
Next I want to provide a link to the Constitution of the United States. In the course of the case argument, there will be many references to certain sections of the Constitution and this link is a very “user friendly” site that will permit you to read and judge for yourself what the Constitution says and intends. As I have oftentimes said, it is a simple document using simple language: https://www.heritage.org/constitution?gclid=EAIaIQobChMI3diQyIuC7AIVFYTICh38IwFtEAAYBCAAEgJ5MfD_BwE
And as a final step in presenting this subject, I want to link the actual transcript from the SCOTUS presentation of Dobbs. Remember that each Justice, through the wording of their remarks and questions, are attempting at some level to influence the ultimate decision: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_gfbi.pdf
As an attachment to the actual transcript of the case arguments, here is a running commentary of the proceeding featured by National Review that really helps to expand one’s understanding of the proceedings: https://www.nationalreview.com/2021/12/dobbs-supreme-court-oral-arguments-live-updates/
Now…let us consider some of the commentary surrounding this SCOTUS case….
https://www.nationalreview.com/bench-memos/dobbs-the-courts-historic-moment-part-1/
https://www.nationalreview.com/bench-memos/dobbs-the-courts-historic-moment-part-2/
https://www.nationalreview.com/bench-memos/dobbs-the-courts-historic-moment-part-3/
Be
Informed…Pass the Word…Just Google centerlineright
To me, this abortion issue that now lies before the SCOTUS is much more about our Constitution than it is about the issue of abortion. The essential place and function of the SCOTUS in our nation’s foundation is at issue here. Should that body serve as the arbiter of this nation’s formative blueprint and make certain that our Legislative and Executive branches hew to those principles…or…Should it be the “social conscience” of our nation and literally foist upon this country mores and behavior that it considers to be the products of an “evolving culture and society”? To put it more bluntly…should it insure legal adherence to the Constitution as it is written or should it supplant our State and Federal elected officials in their civic duties and responsibilities? Here are some views on that subject:
https://www.nationalreview.com/corner/we-need-less-transparency-in-the-supreme-court/
Regardless of your personal feelings about abortion, this specific issue as viewed through this specific case is a wonderful illustration of our nation’s governmental essence. The way we deal with this particular issue says as much or more about us as what we end up doing about it. It is fascinating to read the probing questions and remarks offered by the SCOTUS Justices and wonder…are they trying to inform themselves, trying to persuade others on the Court, or simply trying to consciously pursue an elusive truth? We should expect the answers to these questions come next June.
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