The Supreme Court heard arguments on Wednesday concerning Dobbs v. Jackson’s Women’s Health Organization. It’s a case that judges the legality of Mississippi’s ban on nearly all abortions after 15 weeks.
While the pro-life movement has, for decades, hoped the Supreme Court would eventually hear a case that would challenge the legitimacy of Roe v. Wade, most were doubtful it would happen, let alone succeed. A few things should encourage pro-life advocates.
For starters: Mississippi Solicitor General Scott G. Stewart made it abundantly clear that the Supreme Court should abolish the so-called viability standard which made abortions legal until that point. Justice Samuel Alito hinted that this standard is illogical: “The fetus has an interest in having a life and that doesn’t change does it? From the point before viability to the point after viability?” Even Chief Justice Roberts remained unconvinced of the validity of viability.
Justice Brett Kavanaugh confronted the idea that Roe should remain law simply because of stare decisis, or precedent. “If we think that the prior precedents are seriously wrong … why then doesn’t the history of this court’s practice … tell us that the right answer is actually a return to the position of neutrality?” Kavanaugh is right. Dozens of cases have been overturned in this manner.
Justice Clarence Thomas repeatedly, in multiple lines of questioning, simply asked where the heck the right to abortion could be found in the Constitution. “I understand we’re talking about abortion here, but what is confusing is that we — if we were talking about the Second Amendment, I know exactly what we’re talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written. It’s there. What specifically is the right here that we’re talking about?” Kavanaugh observed, “The court has been forced … to pick sides in the most contentious social debate in American life … [but] the Constitution is neutral on the question of abortion.”
Justice Sonia Sotomayor made one of the most egregious comments of the day when she insinuated viability mattered because babies lack personhood. In fact, she said, they don’t actually feel pain. Comparing an unborn baby to a brain-dead hospital patient Sotomayor said, “Literature is filled with episodes of people who are completely and utterly brain dead responding to stimuli.”
In minutes, the state of Mississippi made a compelling case that Roe was always bad law, that science underscores this, and that the right to abortion exists nowhere in the Constitution in the first place. Ipso facto: abortion laws should be left to the states.
We should be clear that the pro-life movement goes far beyond those lawmakers in Mississippi who passed the bill this Supreme Court is now considering. We couldn’t have gotten here without the thousands of people advocating for life. They have done so for decades, slowly building a movement in law, science, and culture. Justice Amy Coney Barrett, a mother of seven, got to challenge the basic tenets of Roe because the pro-life movement is the scared woman who feels that tiny kick for the first time and knows she’s carrying a tiny person. Kavanaugh challenged Roe’s existence because of the brave reporters who covered cases such as abortion “doctor” Kermit Gosnell.
An enduring emphasis on a culture of life has formed a great alliance. Lawmakers in states kept drafting heartbeat law after heartbeat law knowing they’d be blocked. But still hoping, that is, that maybe one day one law would challenge Roe before the nation’s highest court. Wednesday, that day came.
Nicole Russell is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator’s Young Journalist Award.
