Rich Lowry is editor of National Review and a contributing editor with Politico Magazine.
At times, you might have been forgiven for thinking that oral arguments over the Dobbs case were being held before the Health and Human Services Committee of the Pennsylvania state Senate, or some other legislative body.
Dobbs v. Jackson Women’s Health Organization, involving Mississippi’s ban on abortion after 15 weeks, is, of course, the most consequential abortion case to reach the Supreme Court in decades. The arguments on Wednesday, as you would expect, featured plenty of intricate legal discussion about precedent and the like. They also delved at length into questions of policymaking that aren’t rightly in the ambit of the Supreme Court — and that the court never should have taken on in Roe and Casey, the abortion cases that are on the verge of collapse owing to their manifest constitutional shabbiness.
Indeed, the otherwise fascinating, substantive and wide-ranging discussion was relatively light on what is the supposed source of a constitutional right to abortion. The advocates opposed to the Mississippi law located it somewhere in the 14th Amendment, even though, as Justice Samuel Alito pointed out, no one at the time of the Amendment’s passage believed it guaranteed a sweeping right to abortion. Justice Sonia Sotomayor even said at one point that the Supreme Court comes up with decisions all the time that aren’t directly grounded in the Constitution. This is a line of argument that, if taken seriously, would justify the Supreme Court swinging free of all restraint and rewriting the nation’s laws on the fly.
Which is precisely what the court did in Roe and Casey.
In 1973 and again in 1992, the court made the mistake of thinking that it should be the arbiter of a fraught social and moral issue, and essentially crafted an abortion policy for the entire nation without any democratic input. Because the outcome — namely a prohibition on nearly all meaningful restrictions on abortion — is to the liking of abortion rights advocates, they have become invested in the notion that Supreme Court precedent, even bad precedent, should stay on the books forevermore. One of the more jaw-dropping moments of the arguments was when Alito nearly cornered Biden administration Solicitor General Elizabeth Prelogar into maintaining that it would have been a mistake for the Supreme Court to overturn its hideous pro-segregation decision in Plessy v. Ferguson too soon.
The conservative justices and the abortion rights advocates went back and forth on where the Supreme Court should draw the line on allowing restrictions on abortions. Prelogar and Julie Rickelman, a lawyer representing the Mississippi abortion clinic in the case, insisted that it should be at fetal viability, around 23 or 24 weeks of pregnancy. Why? Because that’s where the Supreme Court’s jurisprudence has drawn the line to this point (although with loopholes that still allow some post-viability abortions). But this raises the question of whether the court was right to draw the line there in the first place.
Rickelman added that the line of viability is “objectively verifiable and doesn’t delve into philosophical questions about when life begins.” This is in doubt, though. Some premature babies have survived after being born at 21 weeks, and many abortion rights advocates deny that unborn babies have any moral standing at any point in a pregnancy.
Sotomayor said that believing an unborn baby has a right to be protected under law is a religious view. If so, why does the Supreme Court get to impose its “religious view” that the state can protect a fetus after 24 weeks but not before? She and her colleagues sit on the highest court in the land, not the Sanhedrin.
Drawing the line at viability, it was made clear during the arguments, is wholly arbitrary.
Alito highlighted this arbitrariness when he asked: If abortion advocates believe there’s a women’s liberty interest in having access to the procedure, why does that interest suddenly end at the line of viability? By the same token, why does a fetus have less of an interest in having its life protected prior to viability than after it?
Chief Justice John Roberts wanted to know why drawing the line at 15 weeks, as Mississippi wants to, rather than at viability would be so damaging, since it falls well short of a total ban on an abortion.
Justice Brett Kavanaugh noted near the end of the arguments that there is no good way to balance the liberty interest of women and the fetal interest in life — one or the other gives way, no matter where you draw the line at any particular point in time. In the absence of a right to abortion in the Constitution, let alone guidance in the document about how specifically to arbitrate a bitterly divided moral and political question, he suggested that the court should remain neutral and let the people’s representatives take up the question.
This is the right answer. If the Supreme Court significantly erodes Roe and Casey or overturns them in its Dobbs decision next year, elected bodies will have more authority over abortion than they have had in 50 years. Some will agree with Prelogar and Rickelman on the policy; others with Mississippi’s Solicitor General Scott Stewart, who argued the state’s case. Many will be somewhere in between.
The initial political reaction to overturning Roe and Casey would be thermonuclear, and it’s easy to see elected Republicans, who have no discernible post-Roe strategy, set on their back heels. The fallout from the Court’s moving against Roe is the foreseeable event that has the greatest potential to affect the trajectory of the midterm elections next year.
On the other hand, in the bluest states, where voters are most supportive of abortion rights, nothing would change in the post-Roe world. Red states would move to restrict abortion, but there’s a good chance that these measures would be popular locally. Would they anger and motivate voters in the blue states? Maybe. But Democrat Terry McAuliffe got nowhere trying to use the Texas abortion law as a political cudgel on the Virginia gubernatorial candidate race last month; few voters really believed Richmond was going to follow Austin’s lead.
It could be, then, that the decentralized nature of the American system — with various state legislatures working their will in a messy patchwork befitting a vast, diverse continental nation — comes up with an arrangement on abortion that is broadly acceptable to most people, if not necessarily morally or logically coherent.
That may not be satisfying to either side, but it would be more democratic and sensible than looking to nine justices to, in their wisdom, dictate a policy from on high.
