The Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health this morning to decide the fate of Mississippi’s 15 week abortion ban.
At issue is 1) whether states can prohibit abortion prior to the age of viability, which is when it is believed that a child can survive outside the womb (the “viability standard”) and 2) whether the Court can overrule Roe v. Wade and Planned Parenthood v. Casey and return the authority to protect unborn children to states.
Four Justices – Thomas, Alito, Gorsuch and Kavanaugh – appeared ready to not only uphold the 15 week abortion ban, but to do away with Roe and Casey.
Justice Clarence Thomas repeatedly asked where the so-called “right” to abortion could be found, since it is not in the Constitution.
Justice Kavanaugh cited a litany of cases where the Supreme Court has overruled bad precedent, including Brown v. Board of Education, in which the Court held that racial segregation laws were unconstitutional, effectively overruling Plessy v. Ferguson.
U.S. Solicitor General Elizabeth Prelogar argued in favor of the viability standard and maintained that a state’s interest in protecting life only begins at viability.
However, as we pointed out in our brief to the Court, the determination of viability is highly subjective and prone to bias. For example, some hospitals refuse to treat babies born before 25 weeks as a matter of policy, even though babies born as early as 21 weeks can survive if given proper care. Although Justice Sonia Sotomayor insisted that viability begins at 24 weeks, UK hospitals now regularly treat babies born as early as 22 weeks
Prelogar argued that “Abortion is central to women’s ability to participate fully and equally in society,” and that the Supreme Court “should not overrule this central component to women’s liberty.”
This is the extremist rhetoric that drives abortion policy in the current administration. In no other context could it be claimed that liberty and equality are contingent on the power to tear another human being limb from limb.
Still, there is reason for optimism. Justice Amy Coney Barrett appeared unconvinced that post-viability pregnancy is the intolerable burden pro-abortion attorney Julie Rikelman made it out to be. Rikelman represents Jackson Women’s Health, the abortion clinic challenging the Mississippi law. Chief Justice John Roberts acknowledged that many Supreme Court cases could be deemed as wrongly decided if viewed from today’s perspective.
Life Legal’s Chief Legal Officer Katie Short was at the Supreme Court this morning and provides her take on today’s argument here:
If the Court does overrule Roe and Casey, 26 states will certainly or likely prohibit abortion altogether! The Supreme Court has until the end of June 2022 to return its decision in Dobbs.