Oral Argument Reaction: Will SCOTUS Split The Baby in Dobbs?

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Wednesday, December 1, 2021


At ten o’clock on Wednesday morning, the Supreme Court of the United States heard Dobbs v Jackson Women’s Health Organization—the latest challenge to Roe v Wade. Rather than offering wild predictions based on only two hours of oral arguments, this article will highlight key moments from the hearing and provide analysis on what we can expect from this case.

Over the past year, legal analysts have predicted that Dobbs will result in one of three scenarios: 1. Roe and Casey are upheld, 2. Roe and Casey are overturned, and 3. Roe and Casey are remade through a “[clarification] of the undue burden standard.”

Given the current makeup of the Court, the first scenario strikes me as the least likely result. All three potential swing votes—Chief Justice Roberts and Justices Barrett and Kavanaugh—seem to believe that overturning Roe is fairly encompassed within the question presented.

As Charles W. Cooke writes for the National Review, “[This hearing] has neatly confirmed that everybody involved knows full well that Roe is nonsense—Casey, too—and that the debate is really over whether it would be a good or bad thing to admit it.”

Rather than defending the legal reasoning or constitutionality of Roe, Justices Kagan, Breyer, and Sotomayor argued almost exclusively on policy, political, and precedential grounds. All three liberal Justices asked questions targeted at the moderate conservative Justices in inquiring about a potential middle ground, appealing to the concerns about the Court’s legitimacy, and pontificating about the principle of stare decisis.

As analysts on all sides noted, the three liberal Justices sounded defeated. The question now, it seems, is whether or not the Court will go all the way in overturning Roe and Casey.

All three lawyers who argued in front of the Court—Mississippi Solicitor General Scott Stewart for Dobbs and Center for Reproductive Rights Senior Director Julie Rikelman and U.S. Solicitor General Elizabeth Prelogar for Jackson Women’s Health—argued for an all-or-nothing approach to the case. The closest any lawyer came to giving the Court a potential middle ground solution was SG Stewart’s undue burden standard answer to Justice Thomas’s question at the beginning of the hearing. Rikelman and SG Prelogar flat out rejected the notion of a middle ground while Stewart later emphasized that he did not believe an arbitrary compromise was a viable solution.

Any standard the Justices come up with in upholding the Mississippi law while leaving Roe and Casey intact will have to be created behind closed doors. While Chief Justice Roberts seemed interested in a potential compromise, Justice Barrett and Kavanaugh showed no signs of following suit.

In fact, pro-lifers were pleasantly surprised with how Justice Kavanaugh drove at whether the abortion issue should be returned to democratic processes in the states. Long considered a key swing vote, Kavanaugh’s forceful assertions regarding the Constitution’s neutrality are an encouraging sign that he might vote to overturn Roe completely.

Justice Barrett appeared to show her cards less throughout the hearing. Her most interesting questions focused more on what the proper handling of stare decisis is. While she does not seem sympathetic to Roe, there are no clear signs indicating where her vote will land. The same can be said for Justice Gorsuch.

Justices Thomas and Alito will almost certainly vote to overturn Roe while Justices Kagan, Breyer, and Sotomayor will vote to uphold it. Alito especially asked sharp questions that drew key concessions from the defendants, while Breyer and Sotomayor seemed more interested in politics than legal analysis.

Finally, Chief Justice Roberts’ position was the most difficult to discern. While he claimed that he found Justice Breyer’s legitimacy argument compelling, he compared U.S. abortion laws to Chinese and North Korean laws, referred to liberal scholar John Hart Ely’s evisceration of Roe, and appeared uncomfortable with the prospect of handing down another case like Casey. Predicting where the Chief Justice will land based on oral argument seems like a fool’s errand.

While Wednesday’s proceeding left pro-lifers with plenty of reason for hope, it is important to remember that there are no certainties here. Many legal analysts predict that Dobbs will not be handed down until the end of the term at the end of June. In the meantime, all we can do is hope and pray that justice is served.

Jonathan Voos is a baseball player and Political Science/Economics double major at Austin College, a private liberal arts institution in Sherman, Texas. He currently serves as Treasurer of the Austin College Pre-Law Society and is an active member of his church and his community.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.


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About Jonathan Voos

Jonathan Voos is a baseball player and Political Science/Economics double major at Austin College, a private liberal arts institution in Sherman, Texas. He currently serves as Treasurer of the Austin College Pre-Law Society and is an active member of his church and his community.

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