I listened to the entire Supreme Court argument in Dobbs v. Jackson Women’s Health last Wednesday. You can listen to the recording here – DOBBS RECORDING or read the transcript here -TRANSCRIPT.
I have no intention here of going through/evaluating all the arguments or predicting outcomes. Many commentators have already done that and you also can listen/read the above and make your own judgments and predictions.
After making a few brief comments I simply want to focus on the idea of the woman’s right itself, as it struck me from the arguments of the Respondent and the Solicitor General.
As to the few short observations – I thought the attorney for the Petitioner State of Mississippi was outstanding. Regardless of one’s biases or feelings about the case, he was a fine example of what should be expected of anyone arguing before the Supreme Court. He was incredibly well prepared, thoroughly knew and understood the relevant law and facts as well as the policy arguments involved. He listened to the Justices’ questions and concerns, answered their questions, and presented a persuasive case for his client.
I found the other attorneys, while polished orators, to be less prepared and less able to actually answer the Justice’s concerns.
I was impressed with all but one of the Justices. Eight seemed to ask fair and important questions that were designed to help them to understand aspects of the case or the arguments so as to better render an appropriate decision. I was disappointed in Justice Sotomayor who seemed to be unnecessarily biased and argumentative in her questions during this argument.
But one thing that struck me about the arguments of the Respondent
Jackson Women’s Health and the U.S. Solicitor General were the seeming reliance
on some sort of special equality held by women. These attorneys were arguing to uphold Roe
v. Wade and to strike down the Mississippi law banning abortion after 15
weeks.
These attorneys argued that women have a fundamental right to abortion. When asked what this specific right is – where it is or arises from in the Constitution, they repeatedly referred to “liberty.” If one cuts through all the chaff, their argument seems to be that while we all have a right to liberty, women have a special right within that which allows them to terminate the life of another, at least until that life becomes viable outside the womb.
Now last time I read our Constitution, it provides and demands equal rights for all citizens, not different or special rights for one group or another. Yet what their argument does is to take the liberty right from the unborn child, giving it no rights at all, and then adding that child’s rights to the woman’s liberty right, giving her some sort of super right.
A woman’s right to control her own body is not a special right, but one that exists for all of us (mandates not withstanding). But when that right includes the right to take another life as abortion does, it becomes a special right. Giving women the right to take away the right of another in essence gives them a super-equality; an “equality” that is more than the equality of others. That flies in the face of the demands of our Constitution and our core principles of equality and liberty for all.
The weakness of this pro-abortion argument exemplifies the underlying weakness of the Roe v. Wade decision and of the assertion that a woman holds the right to choose not only what happens to her life, but to the life of a separate individual in her womb. If the woman’s right is based on liberty, it is also a denial of liberty to another.
Other arguments were similarly weak: for some reason it is, in the mind of the respondent and the DOJ, acceptable that a woman’s right to abortion may be curtailed after the point of viability (somewhere around 24 weeks) but 15 weeks is too early. Their reliance on the difficulties faced in raising a child were cut short when Justice Barrett reminded them that a woman could give up a child for adoption almost immediately after birth, thus avoiding the alleged harm of parenting.
They also had no real answer to why this question of right to abortion, not set forth in the Constitution, should be decided by 9 Justices rather than by the people or their legislative representatives. They asserted it was because those 9 had, in Roe v. Wade, said it was a right. This circular reasoning does not answer or prove why those 9, not the people, should decide whether that right exists and if so to what extent.
The arguments of Respondent and DOJ simply were not convincing. They asserted a right exists which puts the women’s rights, her equality, above others, but couldn’t explain precisely what this right is or where this right came from other than a Court decision. They couldn’t explain why it is necessary that women be granted a special right, giving them some sort of greater liberty or super-equality.
And, when it came to the question of whether the Court should re-examine and possibly overturn Roe v. Wade, they argued no, primarily based on nothing more than that the case and its created right to abortion has been around so long.
Indeed, there was much questioning about whether the court should touch the Roe ruling, especially with the strong political split about a woman’s right to abortion. Is it some super case that the court cannot touch?
The State’s attorney analogized to the overturning, after 58 years, of Plessy v. Ferguson, the case that created separate but equal, by Brown vs. Board of Education, the case that ruled racial segregation unconstitutional. In his rebuttal he stated:
In closing, I would say that in his dissent in Plessy versus Ferguson, Justice Harlan emphasized that there is no caste system here. The humblest in our country is the pure, the most powerful. Our Constitution neither knows nor tolerates distinctions on the basis of race. 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 unless and until this Court overrules it.
Just as Brown v. Board, while focused on race, demanded recognition of true equality, so it is crucial that our current Supreme Court also focus on the equality demanded by the Constitution. Neither women nor any other group should be granted super-rights or super-equality. And especially not at the expense of the liberty and life of another human being.
Roe v. Wade is not protected from
overrule. If it is Constitutionally
proper to overrule it then that is what should be done. As Chief Justice Roberts noted, no matter how
the Court decides, it will likely be charged with political bias in its
decision. So let us hope that they, like
the Justices who decided Brown, have the courage to do what the Constitution
demands, no matter what the political fallout may be.
