On December 1, 2021, the Supreme Court heard oral arguments in Dobbs v. Jackson Center Women’s Health Organization. The focus of the oral argument was on whether or not Roe v. Wade (1973) and the later case that affirmed Roe, Planned Parenthood of Southeast Pennsylvania v. Casey (1992) (hereinafter Casey) should be overturned. Based on the questioning, I think Justices Breyer, Sotomayor, and Kagan will vote to uphold Roe and Casey, as explained below. Justice Thomas will vote to overturn Roe just like he did in Casey. Justice Alito, as well, will vote to overturn Roe and Casey and potentially Justice Kavanaugh. That leaves Chief Justice Roberts and Justices Gorsuch and Barrett as the swing votes. Based on questioning and past decisions, I think Chief Justice Roberts will join the “liberal” wing of the court and vote to uphold Roe and Casey leaving Justices Gorsuch and Barrett. One could read their questions during oral argument as leaning towards overturning Roe, but the questions can also be read the other way. I think a compromise will be reached and Roe and Casey will be upheld. Bottom line, it is likely the vote will be 5-4 or 6-3 and no matter the outcome the country will be further divided over the abortion issue.
Dobbs v. Jackson Center Women’s Health Organization
Mississippi passed a law that prohibited abortion after 15 weeks of pregnancy and criminalized the act of providing an abortion after 15 weeks of pregnancy. This is the law that is at issue in the Dobbs case, Dobbs is the State Health Officer of the Mississippi Department of Health, he was sued in his professional capacity by abortion providers in Mississippi. Before the law taking effect, abortion providers in Mississippi sued in federal court to have the law declared unconstitutional. The District Court held that the law was unconstitutional based on the U.S. Supreme Court decisions in Roe and Casey. This ruling was affirmed by the appellate court and the Supreme Court agreed to hear this case but on only one question: Whether all pre-viability prohibitions on elective abortions are unconstitutional.
Prior Supreme Court Cases
Roe v. Wade was a landmark case in that it was the first Supreme Court case to determine a newly recognized right protected under the U.S. Constitution. The Court in Roe decided that the 14th Amendment restrained the states from interfering with a woman’s decision to terminate a pregnancy. Roe set up a trimester balancing test. During the first trimester, the state cannot regulate abortion at all. During the second trimester, states could have reasonable regulations on abortion. During the third trimester, states could prohibit abortions with exceptions for cases where the life or health of the mother is at risk. To say Roe is a controversial decision is an understatement. It has been both praised and denounced over the last 50+ years.
In 1992, after multiple requests to overturn Roe, the Court could have overturned Roe in Casey. However, a deeply divided court came to a seemly compromise decision and in a plurality decision upheld Roe but created a new, unique type of test for abortion laws. Casey reaffirmed Roe, but did away with Roe’s trimester framework and determining viability of the fetus as when the state could regulate abortions. Further, the Court created a new test applicable only to abortion cases to determine if laws violate the Constitution. This is the undue burden test, regulations regarding abortion cannot “unduly burden” a woman’s access to an abortion. A plurality decision is a majority opinion agreed by less than a majority of Justices. In Casey, only three justices signed the full majority opinion, two justices agreed with the conclusion but only certain parts of this decision and wrote separate opinions. Four justices dissented and argued that Roe should have been overturned entirely. Justice Thomas was one of those justices and is the only Justice that remains on the Supreme Court since Casey was decided.
Summary of the Arguments
Before oral arguments, both parties file briefs to the Supreme Court. These briefs are written arguments advocating for each side’s position. There is no evidence presented at the Supreme Court. The Court’s decision is made entirely on the written record of the lower courts, the briefs, and oral arguments. In addition to each side, briefs of amici curiae, meaning “friend of the court” are also submitted. In the Dobbs case, more than 140 amici briefs were filed, a majority of them supported the petitioner asking the court to overrule Roe.
The State of Mississippi (Dobbs) argued that the Court should overrule Roe and Casey. Arguing there is no Constitutional right to an abortion and Roe and Casey were “egregiously wrong” and have proven “hopelessly unworkable.” The state argued that Roe determined that the right to an abortion was justified by the right to privacy, but there is no “right to privacy” in the Constitution, that “[n]owhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life.”
The respondents, Jackson Health, argued that under Roe and Casey the Mississippi law should be found unconstitutional and both Roe and Casey should be upheld under stare decisis (“to stand by things decided”) the legal doctrine of precedent. The respondents argued that before viability the law is clear, a state cannot prohibit abortion, thus the Mississippi law should be struck down as unconstitutional. The respondents argued that Roe and Casey should be upheld because the right to an abortion is a fundamental liberty right. The Court in Casey determined based on stare decisis principles that Roe should not be overturned, and nothing has changed since Casey. Respondents argued that a state prohibiting abortion before viability and for the “state to take control of a woman’s body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings” is a violation of her liberty.
The Solicitor General, on behalf of the Federal Government, filed an amici brief supporting the respondents and was allowed to argue at oral arguments. Like respondents, the Solicitor General argued that Roe and Casey should be upheld and the right to an abortion is a fundamental liberty right and should be protected.
Oral arguments
During oral arguments, each side takes turns presenting an argument and answering questions from the justices. The petitioner starts and is allowed a short rebuttal at the end. Before oral arguments, the justices have already read all the briefs in the case and the oral argument is a chance for the Justices to ask questions not already answered by the briefs. These questions can provide insight as to how each justice may rule on the case.
Cameras are not allowed in the Supreme Court, but all oral arguments are recorded and transcripts are created after the fact. There were a few things in the Dobbs case that would be missed by just reading the transcript. Notably, the emotional tone expressed by some of the justices. Justice Breyer at times raised his voice in anger. Justice Sotomayor was very emotional at times and at one point seemed irritated by either the petitioner or the Chief Justice who interrupted her questioning. Also, notable Justice Alito asked the Solicitor General if the right to an abortion was “deeply rooted” in our nation’s history. When she answered in the affirmative, he laughed (so did I).
Another noteworthy observation from oral arguments was the number of questions from Justice Thomas and the fact that he was the first justice to ask questions of all the attorneys arguing. Justice Thomas is notorious for his silence, he went over a decade without ever asking a single question during oral argument. He asked his first question in over a decade after the Court when remote in 2020. In Dobbs, his questions focused on the text of the Constitution and where exactly the right to an abortion is found in the Constitution. It is not found in the text of the Constitution, and in Roe, the Court determined it must be based on the right to privacy and liberty, rights also not found in the text of the Constitution. Justice Thomas dissented in Casey and thought Roe should have been overturned in 1992, his questioning in Dobbs leaves no doubt he would again vote to overturn Roe.
Justice Alito’s questioning focused on the historical context of the right to an abortion (or lack thereof). He has several questions regarding the number of states who had laws that outlawed or criminalized abortion when the Constitution was ratified and when the 14th Amendment was passed. His questioning leads to the conclusion that he would vote to overturn Roe and Casey.
Justices Breyer and Sotomayor’s questions focused on stare decisis, the importance of the Roe and Casey, and the reliance women and men have had on the holding of Roe and Casey. There is no doubt they would vote to uphold Roe and Casey.
Justice Kagan asked only a few questions but they focused on stare decisis and reliance. She too will vote to uphold Roe and Casey.
Justice Kavanaugh's questioning focused on the fact that the issue of abortion is deeply divisive and might be better left up to state legislatures. He specifically asked the petitioner (State of Mississippi) what the effect would be if Roe and Casey were overturned. He confirmed that the Court wouldn’t be saying women no longer have a right to an abortion, it would just turn it over to the states for each state to decide if, and how, they regulation abortion. The State of Mississippi confirmed that each state would be different, some states would have no restrictions, some states would ban abortion altogether. The Solicitor General pointed out that several states have laws that prohibit abortion that would immediately take effect if Roe and Casey are overturned. Justice Kavanaugh’s questioning shows that he is leaning towards voting to overturn Roe and Casey and leave the issue of abortion to the legislature.
Chief Justice Roberts’ questioning focused on the issue of viability and stare decisis. HIs questioning makes it seem that he likely will vote to uphold Roe. He has a reputation of fashioning compromise opinions in politically charged cases. I think it is likely he could author a compromise opinion that uphold Roe and Casey but extends the undue burden test to all abortion laws getting rid of the viability standard. This way the Court could uphold the Mississippi law since it allows abortion up to 15 weeks, and also keep the core ruling of Roe and Casey that the right to an abortion is a liberty right protected by the 14th Amendment.
Justice Barrett asked a few questions about stare decisis but also asked a few questions about “safe haven” laws. Her questions pointed out that safe haven laws allow women who decide they no longer want the “burdens” of parenthood to surrender their child and terminate their parental rights with no questions asked. Based on her questions, she could vote either way.
Justice Gorsuch asked about stare decisis and the undue burden test and viability standard of Casey. He specifically asked a question about extending the undue burden standard to regulations before viability. While he has voted with Alito and Thomas in a previous abortion case, this question leads me to believe he would be open to the “compromise” decision as explained above.
Liberty Argument
The respondent and the Solicitor General spent most of their argument focused on the liberty rights of a woman and how the state should not be able to restrict the right to an abortion before viability because it would be an infringement on a woman’s liberty rights. The respondent argued, “allowing a state to take control of a woman’s body and force her to undergo the physical demands, risks, and life-altering consequences of pregnancy is a fundamental deprivation of her liberty.” It is impossible not to see the parallels with force vaccinations. The same people who support overturning Roe argue “my body, my choice” when it comes to vaccine mandates. While the right to an abortion is very different from the right to bodily integrity to refuse a vaccine, both are rooted in the right to privacy and the right to liberty.
It is easy to see that the similar arguments of liberty and freedom from government intrusion into the doctor-patient relationship and bodily integrity that were made by the “pro-choice” pro-Roe litigants will be made by anti-vaccine, anti-mandate litigants. If, and I think this is a big if, the Supreme Court overturns Roe and Casey, the Court will need to narrow the opinion that explain the right to an abortion is not a constitutional right and it is not a personal liberty right because it involves another life. The opinion should emphasize that the legislative branch is the appropriate branch to regulation abortion and that overturning Roe and Casey would not ban abortion it would just return the issue to each state to determine how best to weigh the interests of all involved. If the Court overrules Roe and Casey by determining the right to privacy and liberty are not fundamental constitutional rights, it would call into question past cases dealing with privacy and liberty and make arguing vaccine mandates are unconstitutional difficult.
The Supreme Court has already voted on the Dobbs case. The vote usually takes place in a conference the day after oral arguments. The next several months will be spent writing opinions and circulating the opinions for all the justices to read and review and adjust before publication. The final opinion in Dobbs likely will not be published until next spring. My prediction is Chief Justice Roberts will do what he has done in the past and garner support for a compromise opinion. If he can do so, it is likely Justice Barrett and Gorsuch will vote with him, thus upholding Roe and Casey in a 6-3 opinion.