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Denver Newsroom, Dec 1, 2021 / 17:22 pm (CNA).

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.

The justices' questions and comments were made in response to the three lawyers who gave oral arguments in the case on Dec. 1. They are: Scott G. Stewart, the solicitor general of Mississippi; Julie Rikelman, litigation director of the Center for Reproductive Rights, who was representing the Jackson Women’s Health abortion clinic in Mississippi, and U.S. Solicitor General Elizabeth B. Prelogar, who was representing the Biden administration in opposition to Mississippi’s law.

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: “I want to be clear about what you're arguing and not arguing … to be clear, you're not arguing that the Court somehow has the authority to itself prohibit abortion or that this Court has the authority to order the states to prohibit abortion as I understand it, correct?”

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?”

Justice Amy Coney Barrett

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 ... 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?”

Note: Transcripts obtained via the U.S. Supreme Court website. Most of the questions presented here have been lightly edited for length and clarity.

Denver Newsroom, Dec 1, 2021 / 17:01 pm (CNA).

On Wednesday, the U.S. Supreme Court heard oral arguments in the case Dobbs v. Jackson Women’s Health Organization, concerning Mississippi’s ban on most abortions after 15 weeks. Leading up to and in response following the oral arguments, pro-life leaders and legal experts offered their perspectives. 

Below is a collection of statements and social media posts. 

Dr. Grazie Pozo Christie 
Senior Fellow, The Catholic Association

“Justice Sotomayor's assertions in today's oral argument in the landmark abortion case of Dobbs v. Jackson Women's Health about fetal pain were wholly ignorant of the tremendous scientific advances in fetal medicine. As recently as last year, doctors in the Journal of Medical Ethics wrote, 'Current neuroscientific evidence supports the possibility of fetal pain before the 'consensus' cutoff of 24 weeks' and may be as early as 12 weeks. Not only does medicine agree that fetal anesthesia be administered for fetal surgery, a clear reflection of the medical consensus that unborn babies can feel pain, but like viability, the line marking when they feel pain continues to inch earlier.”

“As a practicing diagnostic radiologist, I can attest that advances in ultrasound technology continue to astonish the medical community as to the humanity of the unborn child, a truth and medical reality that we can now see clearly in the earliest weeks of life. To compare an unborn child to a brain-dead person or a corpse flouts science which tells us that at 15 weeks gestation, a baby's organs are fully formed, her heart pumps 26 quarts of blood a day, and her lungs are already practicing drawing breath. This case is before the Supreme Court today in large part because Americans have seen the evolving science and increasingly want a voice in a question of great moral consequence.” 

 

Sherif Girgis
Associate Professor of Law, Notre Dame Law School

“Across the political spectrum, many close court-watchers who would've said at 9:59 a.m. that there is no chance the Court fully reverses Roe are now saying that's the likeliest outcome. The Chief repeatedly asked if there was a middle ground, and no one produced one. On the contrary, the lawyers for the Biden administration and the clinics repeatedly rejected any middle ground.” 

“Justice Kavanaugh repeatedly signaled that he thinks abortion is entirely for the states to decide. Justice Barrett showed that the availability of adoption undercuts many of the arguments for a constitutional abortion right. I would be very surprised if Roe survived the summer. "

Megan Wold
Legal Expert & Attorney Practicing Appellate and Constitutional Law

“During today’s argument, the justices signaled that Roe was wrongly decided as an original matter; that Roe has been undermined by subsequent scientific and legal developments; that the Constitution is silent on the question of abortion; and that no right to abortion exists in our country’s history and tradition. These views support overruling Roe.” 

“Moreover, no Justice proposed a new standard to replace Roe, and six justices suggested a willingness to eliminate Roe’s key viability holding.  It is clear that the court is likely to substantially weaken Roe, or more likely, to overrule Roe altogether." 

Stephen Billy
Executive Director, Charlotte Lozier Institute

“Chief Justice John Roberts correctly stated during today’s Dobbs oral arguments that United States abortion law is extreme in comparison to global and European norms. The United States is among a small handful of nations, including China and North Korea, that allow elective abortion more than halfway through pregnancy, or after 20 weeks.”

“I was stunned to hear the abortion industry counsel challenge Chief Justice Roberts on whether or not U.S. abortion law is extreme. The Chief Justice correctly cited CLI research that shows how Roe puts the United States in the same class with China and North Korea, allowing abortion-on-demand until the day of birth. Does the abortion industry not read the Washington Post?”

“Despite Ms. Rikelman’s claims, the black-letter law is clear:  47 out of 50 European nations limit elective abortion prior to the 15-week limit proposed by Mississippi.”

Camille Pauley
Co-Founder, Healing the Culture

“Roe v. Wade is an archaic judicial artifact on life support, and the Supreme Court should seize this opportunity to dump it on the ash heap of history. But no matter how this decision falls, Roe is a crippled legal dogma that will not long survive.”

“Science, philosophy, and public opinion have passed it by. Our hope is that the Court’s ruling in Dobbs will bury this dead letter from the past and reinstate the principles of human rights that are outlined in the Declaration of Independence and the U.S. Constitution.” 

“The lethal logic of Roe v. Wade is that your life won’t be protected unless you’ve attained a certain level of development, but this violates the most critical and important principles of civilization—do no harm, the ends don’t justify the means, every human being is intrinsically valuable, the right to life must take priority over the right to liberty, and numerous others. Without these principles, civilization collapses.” 

Chelsey Youman
National Legislative Advisor, Human Coalition Action

“Roe was egregiously bad jurisprudence and has resulted in millions of deaths. Ending an innocent human life is not justified by purported reliance interests. Continued fidelity to Roe and Casey is extraordinarily disruptive to a functioning and healthy society, and if the Court’s rulings are to have any integrity, this precedent must not stand any longer. It is time for Roe to be consigned to the dustbin of history.”

“We flatly reject the claim that abortion is necessary to the flourishing of women. We advocate every day for women who are able to parent, work, and succeed amid challenges. Human Coalition Action stands ready to advocate for a culture of life, regardless of whether Roe is overturned. We pushed for the expansion of the safety net in Texas for pregnant and postpartum mothers, and we will continue to advocate for protection of preborn children, and for prioritizing the health and safety of mothers.”

Tom Brejcha
President and Chief Counsel, Thomas More Society

“As the high court hears arguments in Dobbs v. Jackson, we face the first real legal opportunity in over a decade to topple Roe v. Wade. The 1973 decision that legalized abortion in America has left a tragic trail of human carnage: more than sixty-two million dead children and countless broken families and wounded souls.”

Dr. David Prentice
Vice President of Research, Charlotte Lozier Institute

“Respectfully, we suggest that Justice Sotomayor follow the science, which has not stood still since Roe was decided in 1973.  Modern research is revealing that unborn babies do feel pain at an early stage, and we see that science in action regularly during fetal surgery, in which doctors apply analgesia in utero to prevent the suffering of the unborn child.”

Denver Newsroom, Dec 1, 2021 / 16:22 pm (CNA).

U.S. Supreme Court Justice Sonia Sotomayor drew criticism from an accomplished physician for comments that appeared to draw a comparison between an unborn child and a corpse, suggesting that fetal movements recoiling from pain can be likened to reflexes in dead bodies.

The comments came as Sotomayor attempted to create question marks within the larger argument for the humanity of unborn babies during the oral arguments Dec. 1 in Dobbs v. Jackson Women’s Health Organization, a potentially landmark abortion case that could overturn Roe v. Wade. 

“To compare an unborn child to a brain-dead person or a corpse flouts science which tells us that at 15 weeks gestation, a baby's organs are fully formed, her heart pumps 26 quarts of blood a day, and her lungs are already practicing drawing breath,” said Dr. Grazie Pozo Christie, M.D., a radiology specialist with more than 20 years of experience.

Sotomayor’s comments came on the heels of Mississippi Solicitor General Scott G. Stewart’s argument that advances in medical science over the past 30 years have helped Americans grow in “knowledge and concern” about whether the unborn child is “fully human,” which are based in part on increased knowledge of the pain experienced by fetuses in the womb.

“Virtually every state defines a brain death as death. Yet, the literature is filled with episodes of people who are completely and utterly brain dead responding to stimuli,” Sotomayor said.

“There's about 40% of dead people who, if you touch their feet, the foot will recoil. There are spontaneous acts by dead brain people. So I don't think that a response to — by a fetus necessarily proves that there's a sensation of pain or that there's consciousness,” the justice said.

Christie, co-author of a science-based amicus brief presented to the Supreme Court in the Dobbs case, criticized the Supreme Court justice for her assertions, calling them “wholly ignorant of the tremendous scientific advances in fetal medicine.” 

“As recently as last year, doctors in the Journal of Medical Ethics wrote, 'Current neuroscientific evidence supports the possibility of fetal pain before the 'consensus' cutoff of 24 weeks' and may be as early as 12 weeks,” Christie said.

“Not only does medicine agree that fetal anesthesia be administered for fetal surgery, a clear reflection of the medical consensus that unborn babies can feel pain, but like viability, the line marking when they feel pain continues to inch earlier,” Christie added.

Christie emphasized that the medical awareness of the humanity of the unborn child has made its way to ordinary citizens, and not just doctors. 

“This case is before the Supreme Court today in large part because Americans have seen the evolving science and increasingly want a voice in a question of great moral consequence,” she said. 

Several pro-life organizations have extensive scientific information regarding the humanity of the unborn child, including the Charlotte Lozier Institute.

Washington D.C., Dec 1, 2021 / 16:12 pm (CNA).

Oral arguments in Dobbs v. Jackson Women’s Health Organization have concluded. The U.S. Supreme Court heard arguments about the constitutionality of Mississippi’s 15-week abortion ban. Here are some of the more notable happenings in and around the court on Wednesday. 

1. Opening argument: The court should overturn Roe and Casey 



Mississippi Solicitor General Scott G. Stewart opened his argument by claiming that Roe v. Wade and Planned Parenthood v. Casey "have no basis in the Constitution," and have "no home in our history or traditions. 

“They've damaged the democratic process. They poison the law. They've choked off compromise for 50 years,” he said. 

Stewart said those cases have "kept this court at the center of a political battle that it can never resolve.”

“Nowhere else does this court recognize a right to end a human life," he said.

2. The two big words of the day: stare decisis

“Stare decisis,” the legal term for “precedent”, was a hot topic Dec. 1, with nearly every justice raising the issue of how legal precedent should be applied to both sides of the case. Justice Brett Kavanaugh seemed to indicate that precedent is not necessarily a gold standard, noting that the court has overturned many high-profile cases. 

"I think that 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," said Kavanaugh, singling out Brown v. Board of Education, Lawrence v. Texas, and Miranda v. Arizona as examples.

3. Another hot topic: viability 



Chief Justice John Roberts asked the lawyer for Jackson Women’s Health Organization if a 15-week cutoff for abortions could be more workable as a legal standard than viability. 

"It seems to me that (viability) doesn't have anything to do with choice," said Roberts. "If it really is an issue about choice, why is 15 weeks not enough time?"

Jackson Women’s Health’s counsel said it would not, as enacting a pre-viability line would result in states moving to ban abortions earlier and earlier in a pregnancy.

Since the “viability” standard for abortion law was established in the 1992 Planned Parenthood v. Casey decision, improved neonatal care has changed when babies are considered viable. Now, babies born at the 23rd week of pregnancy are statistically likely to survive. The earliest premature baby to survive, a boy named Richard Scott William Hutchison, was born when his mother was 21 weeks pregnant.

4. Pro-lifers rallied in large numbers…


Hundreds of people braved the near-freezing temperatures on Wednesday morning for the “Empower Women Promote Life” rally outside the Supreme Court. The all-female lineup of speakers included members of Congress, pro-life leaders of all politcal backgrounds, including Terrisa Bukovinac, Dr. Grazie Christie, EWTN News in Depth host Montse Alvarado, Penny Nance, Jeanne Mancini, Erika Bachiochi, and Kristen Day of Democrats for Life of America. 

5. ...While others shouted their abortions.



Three women cheered as they allegedly took mifepristone, the first pill in an abortion-drug regimen, while standing in front of the Supreme Court. A video of the act was shared by the organization “Shout Your Abortion,” an organization which seeks to normalize abortion. 

Erin Matson, executive director of Reproaction, called it “epic action.” 

Communications professional Beth Baumann called the video “pretty monstrous,” and remarked, “They're acting like they're taking a tequila shot, not an abortion pill.”



6. Will history look at Roe the same way it regards Plessy v. Ferguson? 

In his rebuttal, ​​Stewart, representing Mississippi, compared Dobbs v. Jackson Women's Health to Brown v. Board of Education.

"In closing, I would say that in the dissent of Plessy v. Ferguson, Justice Harlan emphasized that there is no caste system here; and the humblest in our country is the peer of the most powerful. Our Constitution neither knows nor tolerate distinctions on the basis of race," he said.

"It took 58 years for this court to recognize the truth of those realities in a decision. And that was the greatest decision that this court ever reached. We're running on 50 years of Roe,” said Stewart. 

Roe “is an egregiously wrong decision that has inflicted tremendous damage on our country, and will continue to do so and take innumerable human lives" until it is overruled, he added.

Washington D.C., Dec 1, 2021 / 15:40 pm (CNA).

The U.S. Supreme Court heard oral arguments about the constitutionality of Mississippi’s 15-week state abortion ban Wednesday, a high-stakes test of the settledness of legalized abortion in a deeply unsettled nation still sharply divided over the right to life.

The case, Dobbs v. Jackson Women’s Health Organization, is viewed by many Catholic leaders and pro-life groups as the best chance yet to overturn the court’s landmark 1973 Roe v. Wade decision, which has barred restrictive early-term abortion laws like Mississippi’s for the past 48 years.

Over that time, some 62 million abortions have taken place in the United States, statistics show, a grim toll the Catholic Church sees as both a grave evil and a catastrophic political failure.

Conversely, a decision that strikes down Mississippi’s 2018 law, called the Gestational Age Act, which prohibits abortions after the 15th week of gestation, would represent a devastating setback for the pro-life movement. For many years it has pinned its hopes of overturning Roe on the goal of securing a supermajority of conservative justices on the nation’s highest court, as is the case now.

With thousands of people keeping a vocal but peaceful vigil outside the Supreme Court on a bright, brisk morning in Washington, D.C., the nine justices took up the intensely anticipated case in a proceeding that lasted nearly two hours.

Among the demonstrators were four women shown in a viral video posted online swallowing pills behind a large sign that reads, “WE ARE TAKING ABORTION PILLS FOREVER,” a reference to the prescription drugs mifepristone and misoprostol that when used in combination will induce a miscarriage.

Mississippi is asking the court to do more than simply uphold the state’s abortion law; it wants the court to overturn both Roe and a later ruling that affirmed it nearly 20 years later, the 1992 case Planned Parenthood v. Casey. 

Both Roe and Casey “have no basis in the Constitution,” Scott G. Stewart, the state’s solicitor general, said in his opening argument.

“They have no home in our history or traditions. They’ve damaged the democratic process. They poison the law. They’ve choked off compromise for 50 years,” he said.

In Roe, the court ruled that states could not ban abortion before viability, which the court determined to be 24 to 28 weeks into pregnancy. Casey, viewed as the “Dobbs” of its day, found that while states could regulate pre-viability abortions, they could not enforce an “undue burden.” The Casey court defined that term to mean “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Stewart said the two cases have “kept this court at the center of a political battle that it can never resolve.”

“Nowhere else does this court recognize a right to end a human life,” he said.

A question of ‘settled’ law

Legal scholars see the court’s reluctance to overturn past rulings, even highly controversial ones, as Mississippi’s greatest hurdle in Dobbs.

As anticipated, that legal principle, known as stare decisis, loomed large Wednesday, dominating the litigants’ oral arguments and the justices’ questions. Justice Amy Coney Barrett, the newest addition to the court’s 6-3 conservative majority, said that stare decisis is “obviously the core of this case.”

The term comes from the Latin phrase, Stare decisis at non quieta movere, which means “to stand by things decided and not disturb settled points.”

Stewart, the Mississippi solicitor general, argued that legalized abortion remains an unsettled debate in the United States nearly a half-century after Roe. He argued that the issue should be left to democratically elected state legislatures, not the courts.

“The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work,” he said.

“Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us when an issue affects everyone. And when the Constitution does not take sides on it, it belongs to the people.”

In its court brief, Mississippi cites stare decisis as the reason Roe and Casey should be overturned.

“Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” the brief states. Roe itself broke from precedent because it invoked “a general ‘right to privacy’ unmoored from the Constitution,” the state argues.

“Abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, ‘the purposeful termination of a potential life,’” the brief states. “Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.”

But Julie Rikelman, litigation director of the Center for Reproductive Rights, sharply disagreed.

“Casey and Roe were correct,” Rikelman, who represented Jackson Women’s Health, Mississippi’s last remaining abortion provider, told the justices.

She added that there is an “an especially high bar here” as the Supreme Court rejected “every possible reason” for overturning Roe when it decided Casey nearly 30 years ago.

“Mississippi's ban on abortion two months before viability is flatly unconstitutional under decades of precedent. Mississippi asks for the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will,” she said.

“Two generations have now relied on this right,” Rikelman continued. “And one out of every four women makes the decision to end a pregnancy.”

A third attorney arguing before the court Wednesday, U.S. Solicitor General Elizabeth B. Prelogar, representing the Biden administration in opposition to Mississippi's abortion law, couched the Dobbs case in similar terms. She said overturning Roe and Casey would be “an unprecedented contraction of individual rights and a stark departure from principles of stare decisis.”

Credibility concerns

Liberal justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan argued that overturning Roe and Casey would undermine the court’s integrity by signaling that its decisions were influenced by political pressure.

“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” Sotomayor said. “I don’t see how it is possible.”

Conservative Justice Brett M. Kavanaugh, however, pushed back against that reasoning. He noted that “some of the most consequential and important” decisions in the Supreme Court’s history overturned prior rulings. He cited such cases as the historic civil rights case Brown v. Board of Education, which struck down legalized segregation, and Miranda v. Arizona, which required police to inform suspects they have a right to remain silent.

“If the court had done that in those cases (and adhered to precedent), this country would be a much different place,” Kavanaugh said. Why then, he asked Rikelman, shouldn’t the court do the same in Dobbs, if it were to deem that Roe and Casey were wrongly decided?

“Because the view that a previous precedent is wrong, your honor, has never been enough for this court to overrule, and it certainly shouldn’t be enough here, when there’s 50 years of precedent,” Rikelman responded. The court needs a “special justification” to take such a step, she argued, saying that Mississippi has failed to provide any.

Said Rikelman: “It makes the same exact arguments the court already considered and rejected in its stare decisis analysis in Casey.”

Justice Samuel A. Alito Jr., a conservative, took up a similar line of questioning with Prelogar, the U.S. solicitor general.

“Is it your argument that a case can never be overruled simply because it was egregiously wrong?” he asked.

“I think that at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn’t done so in this case,” Prelogar responded.

“Really?” Alito replied. “So suppose Plessy versus Ferguson (an 1896 decision that affirmed the constitutionality of racial segregation laws) was re-argued in 1897, so nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?”

“I think it should have been overruled, but I think that the factual premise was wrong in the moment it was decided, and the court realized that and clarified that when it overruled in Brown,” Prelogar said.

“So there are circumstances in which a decision may be overruled, properly overruled, when it must be overruled simply because it was egregiously wrong at the moment it was decided?” Alito asked.

When Prelogar didn’t directly answer the question, Alito pressed again.

“Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the court is called upon to consider whether it should be overruled?” he asked. “Yes or no? Can you give me a yes or no answer on that?”

“This court, no, has never overruled in that situation just based on a conclusion that the decision was wrong. It has always applied the stare decisis factors and likewise found that they warrant overruling in that instance,” Prelogar said.

Roberts cites China, North Korea

While the main focus of Wednesday’s proceeding related to stare decisis, there was also discussion of the viability standard established by Roe.

“I’d like to focus on the 15-week ban because that's not a dramatic departure from viability,” Chief Justice John G. Roberts Jr. said in an exchange with Rikelman.

“It is the standard that the vast majority of other countries have. When you get to the viability standard (set at 24 to 28 weeks) we share that standard with the People's Republic of China and North Korea,” he said.

In response, Rikelman said Roberts’ statement was “not correct,” arguing that “the majority of countries that permit legal access to abortion allow access right up until viability, even if they have nominal lines earlier.” She elaborated that while European countries may have 12- or 18-week limits, they allow exceptions for “broad social reasons, health reasons, socioeconomic reasons.”

A 2021 analysis by the Charlotte Lozier Institute found that 47 out of 50 European nations limit elective abortion prior to 15 weeks. Eight European nations, including Great Britain and Finland, do not allow elective abortion and instead require a specific medical or socioeconomic reason before permitting an abortion, the institute said.

The court may not announce a decision in the Dobbs case for several months. It may come at the end of its current term, in late June or early July, when major decisions are often announced.

Denver Newsroom, Dec 1, 2021 / 14:32 pm (CNA).

Catholic leaders offered statements and prayers leading up to and following the oral arguments in the case Dobbs v. Jackson Women’s Health Organization, which concerns a Mississippi law banning abortion after 15 weeks.

The arguments in favor of the law, heard before the Supreme Court earlier today, directly challenge Roe v. Wade, the 1973 ruling that legalized abortion nationwide. 

"In the United States, abortion takes the lives of over 600,000 babies every year. Dobbs v. Jackson Women’s Health could change that,” shared Archbishop William Lori of Baltimore in a statement. 

Lori, who is the chairman of the USCCB Committee on Pro-Life Activities, prayed for the Supreme Court to “do the right thing and allow states to once again limit or prohibit abortion.” In doing so, he said, the ruling would “protect millions of unborn children and their mothers from this painful, life-destroying act.”

“We invite all people of good will to uphold the dignity of human life by joining us in prayer and fasting for this important case,” he said.

Bishop Earl Boyea of Lansing launched a day of prayer and fasting in his diocese while the Supreme Court hears oral arguments. The day includes Eucharistic Adoration, the recitation of the rosary, Mass, and a Chaplet of Divine Mercy at Saint Mary Cathedral in Lansing. All of the events will be livestreamed on the diocese’s YouTube channel. 

“The campaign to abolish abortion is, at root, a spiritual battle between a civilization of love and a culture of death,” said Jenny Ingles, director of fertility and life ministries for the Diocese of Lansing, in a statement. “Hence we need to employ spiritual means in order to finally prevail and win victory for the unborn, their mothers, fathers, families and the common good of all in the United States.”

According to the statement, Bishop Boyea issued a letter to all priests in the diocese to consider adopting a similar schedule for their parishes. 

Other clerics shared their support and asked for prayers on social media platforms. 

“Please pray for the Supreme Court and for these women who need our love and support,” said Archbishop Salvatore Cordileone of San Francisco on Twitter.

Cordileone has been vocal about the right to life of the unborn, calling on the faithful to pray for congresswoman Nancy Pelosi, a Catholic from his diocese who supports abortion. 

Bishop Thomas Tobin of Providence also asked for prayers on his Twitter account. 

“This is a defining moment for our nation,” he said in a Tweet. “Will we continue to destroy innocent unborn children and exploit very vulnerable women, or will we promote an authentic culture of life?” 

Father Dan Beeman, a priest in the Diocese of Richmond, asked for the Supreme Court to “do the right thing and respect every human life” on his Twitter account, invoking the help of the Virgin Mary. 

Father Steve Pullis, director of evangelization, catechesis, and schools for the Archdiocese of Detroit, stated “End Roe; End Casey. Build a Culture of Life,” on his Twitter account.

On Nov. 18, the USCCB held an ecumenical prayer event to rally the pro-life faithful before the Dobbs oral arguments. The event featured prominent pro-life speakers, including Archbishop Joseph Naumann of Kansas City in Kansas. 

“Our nation stands guilty of not only promoting, endorsing, and enshrining abortion across the land, but we are responsible for exporting abortion throughout the world in a sinister form of colonial imperialism,” said Naumann during the national event. 

Naumann, who was the chair of the USCCB’s pro-life committee prior to the election of Archbishop Lori to the position in 2020, said the faithful need to “pray, fast, and work harder to end this pandemic of child sacrifice.”

Legal experts say the Dobbs v. Jackson case presents an ideal opportunity for the Supreme Court to reconsider previous rulings that upheld legal abortion nationwide. Decisions in high profile cases such as Dobbs tend to come at the end of the Supreme Court’s current term, which could be in late June or early July of 2022.

Detroit, Mich., Dec 1, 2021 / 14:16 pm (CNA).

Archbishop Allen Vigneron of Detroit said he was “heartbroken” on Tuesday after hearing of the “horrific tragedy” of a school shooting outside the city earlier in the day. 

“I am heartbroken to hear of the horrific tragedy at Oxford High School,” Vigneron said in a Nov. 30 tweet.

“On behalf of the clergy, religious, and faithful of the Archdiocese of Detroit, I offer heartfelt prayers for the victims, their families, and all those affected in our community,” he added. 

In a follow up tweet, the archbishop said: “May our Blessed Mother wrap all those wounded — physically, emotionally, or spiritually — in her loving mantle and offer them consolation in the difficult days ahead.”

The suspect, a 15-year-old student at Oxford High School, opened fire mid-day Nov. 30. The school is located in Oxford, Michigan, about 45 miles north of Detroit. Four students have died as a result of injuries suffered, and six more students and a teacher are gravely injured. 

The suspected shooter has been taken into custody. According to the local sheriff’s department, the boy did not resist arrest. 

The Twitter account for the United States Conference of Catholic Bishops commented that “We join @DetArchbishop in offering our prayers for the tragedy at #oxfordhighschool.”

According to a tweet from the Michigan Catholic Conference, St. Joseph Catholic Church in Lake Orion held a Mass for “healing and peace” Nov. 30.

“Our thoughts and prayers are with all those affected by today's senseless act of violence #oxfordhighschool,” it added.

St. Joseph’s parish is the closest Catholic church to Oxford, Detroit Catholic reported. Father John Carlin, the associate pastor at St. Joseph’s, gave the homily to a crowd of students, parents, and parishioners, according to Detroit Catholic.

Carlin reminded those who filled the church that God hears their prayers and cries and said that nothing is stronger than Christ’s victory over death, Detroit Catholic reported.

Carlin said that “we don't understand” when we experience a loss of friends or loved ones. He said that Christ “wants not only to walk with us in that darkness, but to let us know that He is there.” 

“He’s not going anywhere, and He never will,” he added.

Clergy from St. Joseph counseled those present after Mass, Detroit Catholic reported. Eucharistic adoration was offered afterwards, and confessions were heard as well.

Washington, D.C. Newsroom, Dec 1, 2021 / 07:59 am (CNA).

The U.S. Supreme Court will hear arguments today, Wednesday, Dec. 1, in the case Dobbs v. Jackson Women’s Health Organization. The case has the potential to overturn Roe v. Wade, which would return the issue of abortion to individual states. 

Cameras are not permitted in the chambers, but audio from the arguments will be broadcast on C-SPAN. Arguments are scheduled to begin at 10 a.m. EST. 

You can listen here:

Members of the EWTN News team, including reporters from CNA, will be on the ground in front of the Supreme Court. Follow along with their tweets here: 

Dobbs v. Jackson - Curated tweets by EWTNews

Washington D.C., Dec 1, 2021 / 07:15 am (CNA).

This post will be continuously updated.

As the Supreme Court is set to hear arguments in the case Dobbs v. Jackson Women's Health, activists both opposed and in favor of abortion rights gathered outside the court in the early morning hours on Wednesday, Dec. 1.

CNA is outside the court and will be providing on-the-ground updates. (All times EST.)

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11:55 a.m. The Supreme Court adjourns.

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11:54 a.m. In his closing rebuttal, Stewart compared Dobbs v. Jackson Women's Health to Brown v. Board of Education.

"In closing, I would say that in the dissent of Plessy v. Ferguson, Justice Harlan emphasized that there is no caste system here; and the humblest in our country is the peer of the most powerful. Our Constitution neither knows nor tolerate distinctions on the basis of race," he said.

"It took 58 years for this court to recognize the truth of those realities in a decision. And that was the greatest decision that this court ever reached. We're we're running on 50 years of Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country, and will continue to do so and take innumerable human lives," until it is overruled.

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11:48 a.m. Prelogar states that she does not think "there's any line that could be more principled than viability."

"I think the factors the court would have to think about are what is most consistent with precedent, what would be clear and workable, and what would preserve the essential components of the liberty interest," she said. "Viability checks all of those boxes, and has the advantage as well as being a rule of law for 50 years."

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11:45 a.m. Scenes outside the Supreme Court

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11:33 a.m. "Shout Your Abortion" shares a video of women allegedly taking Mifepristone, the first drug in a two-drug abortion regimen, to cheers in front of the Supreme Court.

Mifepristone blocks the hormone progesterone from reaching the unborn child, and is used to terminate pregnancies under 10 weeks gestation.

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11:26 a.m. U.S. Solicitor General Elizabeth B. Prelogar begins her arguments in support of Jackson Women's Health.

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11:25 a.m. Rikelman has ended her arguments.

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11:20 a.m. Justice Brett Kavanaugh notes that "when you really dig into it, history tells a somewhat different story" regarding stare decisis.

"I think that 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," said Kavanaugh, singling out Brown v. Board of Education, Lawrence v. Texas, and Miranda v. Arizona as examples.

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11:15 a.m. Alito questions Rikelman about the historical precedent in Roe/Casey. He asked if states had recognized abortion at the time of the 14th Amendment--there were none, said Rikelman, but says there was "common law."

Rikelman could not provide a case recognizing abortion as a right.

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11:06 a.m. Alito calls the viability line "arbitrary," and says that it does not make sense.

"If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed," said Alito. "The fetus has an interest in having life, and that doesn't change."

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10:56 a.m. Justice Amy Coney Barrett questions Rikelman about "safe haven" laws, which permit a woman to terminate parental rights by placing the child for adoption shortly after they are born.

Rikelman notes that this case is not just about parenthood, and says pregnancy is potentially dangerous.

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10:53 a.m. Chief Justice John Roberts asked Rikelman if a 15-week line could be more workable as a legal standard than viability.

"It seems to me that (viability) doesn't have anything to do with choice," said Roberts. "If it really is an issue about choice, why is 15 weeks not enough time?"

Rickelman said it would not, as enacting a pre-viability line would result in states moving to ban abortions earlier and earlier in a pregnancy.

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10:46 a.m. Julie Rikelman, senior director of the Center for Reproductive rights, begins her arguments before the court.

"Casey and Roe were correct," she says. She added that there is an “an especially high bar here” as the Supreme Court rejected “every possible reason” for overturning Roe when it decided Casey.

"Mississippi's ban on abortion two months before viability is flatly unconstitutional under decades of precedent, " said Rikelman. "Mississippi asks for the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will."

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10:31 a.m. Justice Samuel Alito questions Stewart regarding the idea that being pro-life is a religious view only, and asks if any secular bioethicists believe life exists prior to viability.

"It's not tied to a religious view," says Stewart, who said that there are a host of secular people who have differing views on when life begins.

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10:12 a.m. Justices Stephen Breyer and Elena Kagan are pressing Stewart on the issue of stare decisis.

Here's a breakdown about why this legal concept is so pivotal in the Dobbs case.

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10:03 a.m.
Roe v. Wade and Planned Parenthood v. Casey "have no basis in the Constitution," said Stewart. "They have no home in our history or traditions. They've damaged the democratic process. They poison the law. They've choked off compromise for 50 years."

Stewart said those cases have "kept this court at the center of a political battle that it can never resolve."

"Nowhere else does this court recognize a right to end a human life," he said.

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10 a.m. Oral arguments will be starting momentarily. Video is not available, but an audio recording is provided by C-SPAN. Listen live here.

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9:50 a.m. Arguments are set to begin in 10 minutes, and are scheduled to last 70 minutes. Normally, reporters and members of the public would be permitted to observe arguments, but the ongoing COVID-19 pandemic has put a stop to this practice.

Scott G. Stewart, the solicitor general of Mississippi, will have 35 minutes to represent the state.

For Jackson Women’s Health Organization, Julie Rikelman, litigation director of the Center for Reproductive Rights, will have 20 minutes. U.S. Solicitor General Elizabeth B. Prelogar will also have 15 minutes to argue in support of Jackson Women’s Health Organization.

The crowd outside the court continues to swell as the "Empower Women, Promote Life" rally goes on.

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9:02 a.m. This is Marion, from Mississippi. She told CNA that she remembers Roe v. Wade, and says that her generation allowed it to happen. That’s why, she said, her generation must also work to reverse it.

The Supreme Court first heard arguments in Roe v. Wade on Dec. 13, 1971, almost exactly 50 years ago. The case was then re-argued in front of the court on Oct. 11, 1972, and the court announced their decision in the case on Jan. 22, 1973.

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8:33 a.m. Mississippi Attorney General Lynn Fitch said today is a "new chapter in American history, leaving behind the false premise that abortion levels and the playing field for women."

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8:00 a.m.: It's a chilly 36 degrees, but people have assembled in front of the Supreme Court. A fence serves as a physical barrier between the two opposing groups.

The mother of the sons of Zebedee approached Jesus with her sons and did him homage, wishing to ask him for something. He said to her, “What do you wish?” She answered him, “Command that these two sons of mine sit, one at your right and the other at your left, in your Kingdom.” Jesus said in reply, “You do not know what you are asking. – (Matt 20: 20-22) You want to know why I did that? Why I went up to Jesus and dared to ask him to take care of my boys and keep them close to him, close to his authority, so they could share it? Because they were good boys, my John and my James—cheerful, obedient—they’d do anything for Jesus and I figured he needed to see that, and to honor it with some justice. And, if…