Observations on Today’s Abortion Argument at Supreme Court

December 1, 2021

Committee for Justice president Curt Levey made the following observations on today’s oral argument in Dobbs v. Jackson Women’s Health Organization, involving Mississippi’s 15-week abortion limit and a challenge to Roe v. Wade and Casey v. Planned Parenthood:

1) At oral argument today, there appeared to be six votes to uphold Mississippi’s abortion law. However, any predictions must be tempered by the reality that the biggest obstacle to overturning or curtailing Roe and Casey is not legal reasoning but the center-right justices’ possible hesitation in issuing a decision that would outrage the nation's academic, media and cultural elites. Just yesterday, Sen. Jeanne Shaheen (D-NH) predicted a “revolution” if Roe is overturned. When Dobbs is decided next year, we’ll find out if President Trump succeeded in picking justices who not only have conservative principles (the easy part), but are also willing to stick to those principles when the winds of political correctness are blowing in the opposite direction (the hard part).

2) There are likely no more than five votes on the Court to outright overrule Roe and Casey. Chief Justice Roberts focused his questioning on there being little principled or even practical distinction between Mississippi’s 15 weeks and the 24-week gestation line previously drawn by the Court, noting that any distinction has nothing to do with “choice.” That suggests a Roberts concurrence that overrules Roe and Casey only with regard to women who are more than 15 weeks pregnant. I have criticized Roberts’ “wont to take an ostensibly narrow and moderate approach that nonetheless yields a politically correct result.” But in this case, such a compromise approach will earn Roberts no kind words from the left and few from the right. It certainly got no support today from the liberal justices or the lawyers arguing that Roe should stand.

3) Before today, conservatives worried that Justice Kavanaugh would join the Chief Justice in adopting a narrow, compromise approach. But at oral argument, Kavanaugh suggested that because the Constitution is silent on abortion, the Court should take a “neutral” position on abortion—that is, leave it up to the citizens of the various states. That emphasis is hard to square with a compromise that retains a constitutional right to abortion before 15 weeks.

4) Justice Thomas repeatedly asked the abortion clinic’s attorney and the Solicitor General whether a constitutional right to abortion is grounded in a right to privacy or a right to autonomy, the somewhat contradictory bases for the Court’s abortion precedents. They largely sidestepped the question by citing a “liberty” interest with a heavy emphasis on women’s equality; the latter being the popular justification for abortion rights on the left these days. Interestingly, with the possible exception of Justice Sotomayor, none of the pro-choice Justices or attorneys made much effort to defend the legal basis for Roe. Instead, they focused on stare decisis, the Court’s legitimacy, and the possible impact on gay rights precedents.

5) I was struck by the Solicitor General’s argument that “If this court renounces [its abortion precedents], it would be an unprecedented contraction of individual rights.” This argument, that the Court can create new rights under a “living Constitution” theory but can’t take them away, is popular among progressives. But it’s also an empty argument because whether a Supreme Court decision is creating or revoking rights is largely in the eye of the beholder. For example, overruling Roe could be described as expanding the rights of unborn babies or as diminishing the rights of pregnant women.

6) With the mainstream media declaring Roe and Casey dead following today’s oral argument, look for Democrats’ calls for packing the Supreme Court to grow louder, both for its own sake and in the hope of influencing one or more of the center-right Justices before a decision in Dobbs is issued. But court packing will remain a Democratic pipe dream for now. While I have urged conservatives to keep an open mind about thoughtful Supreme Court reforms that don’t give either party an obvious advantage, packing the Court with four additional, Biden-appointed justices is a nakedly partisan proposal that has gotten little support from even the President’s own Supreme Court Commission.

7) Finally, the prediction least likely to come true is the warning from various commentators on the right that the conservative legal movement will die if the Court’s decision in Dobbs disappoints conservatives. Through the forty years of the conservative legal movement, the Court has disappointed and even shocked conservatives many times. Think ObamaCare, same-sex marriage, and the expansion of Title VII to include sexual orientation over just the last ten years. Yet the conservative legal movement persevered. It will again no matter what the Court rules in Dobbs.