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An Early Prediction Following Dobbs Oral Argument by Tyler Moser

Updated: Dec 9, 2021

Hello “Legislating and Litigating Life” readers. We hope you had a wonderful Thanksgiving break with family and friends. We wish everyone a wonderful Advent season and build up to Christmas. Ok, now that we have gotten the niceties out of the way, let’s get down to it.


During the inaugural blog this past summer, we teased a future breakdown on the upcoming ‘Dobbs v. Jackson Women’s Health Org’ Supreme Court case that has a legitimate chance to overturn Roe and Casey. In the 2nd blog analyzing Texas’s Heartbeat law (which is still in effect in contradiction of my prediction, so take any future predictions I have with a grain of salt), we highlighted how Texas’s law was a side show. The main event was on the horizon with Dobbs. Well my fellow pro-life advocates, the horizon is here. And it did not disappoint.


On Wednesday, December 1st, the Supreme Court heard oral argument on the Dobbs case, which is challenging the constitutionality of a Mississippi law banning most abortions after 15 weeks. Presently, this law is unconstitutional, as it is at odds with the current abortion jurisprudence of Casey v. Planned Parenthood. (Yes, most people think of Roe, which made the right to an abortion the law of the land in 1973.) But Casey, decided in 1992, created a test that would prohibit abortion regulations if they were deemed to be an undue burden of the women. What is an undue burden? It’s a relatively easy standard to meet. Constitutional regulations don’t go much further than a 24-hour waiting window. Timeline-wise, viability of the unborn baby is the current standard. And although viability is improving as science advances (a baby weighing under 1 pound and born at just 21 weeks and 1 day was sent home thriving and healthy last month), generally, abortion bans before the 24-week mark are illegal.


How did oral argument go? There were a lot of fireworks on both sides. I encourage you all to listen to the recording. There was a lot to learn from all parties involved, regardless of your views on this matter. But in terms of attempting to predict how this case will turn out, the most important Justices to pay attention to are Chief Justice Roberts and Justice Kavanaugh. We know that the 3 more liberal Justices in Breyer, Kagan, and Sotomayor will vote to uphold Roe/Casey and strike down the Mississippi law. And we can be fairly certain that Justices Thomas, Gorsuch, Alito and Barrett will vote to overturn Roe/Casey, uphold Mississippi’s 15 week ban, and send the abortion issue back to the states. So, what can we gleam from the questions and statements made by Roberts and Kavanaugh?


First, Kavanaugh. Last term, he replaced his predecessor Justice Kennedy as the swing vote, being in the majority 97% of the cases. Where Kavanaugh went, so did the ruling. Granted that was prior to Justice Barrett replacing Ruth Bader Ginsburg, but Kavanaugh still remains on the ideological center of right-leaning judges. One of the main arguments in the pro-Roe/Casey camp centers on a legal doctrine called stare decisis. This doctrine grants deference to past precedent. Since Roe has been on the books for almost 50 years, pro-choice groups argue that overturning it would violate stare decisis. Many wondered if this would sway Kavanaugh. He did not appear convinced in the slightest. He correctly noted that many of the Court’s most watershed cases have overturned past precedent, citing Brown, Miranda, and Obergerfell to name a few. Additionally, Kavanaugh appeared receptive to Mississippi’s call to overturn Roe/Casey in stating, “the Constitution is silent and therefore neutral on the question of abortion. The Constitution is neither pro-life or pro-choice… and leaves the question of abortion to the people and the states.” Statements such as these have many legal scholars believing Kavanaugh will be the 5th vote to overturn Roe/Casey altogether this summer. So now let’s take a look at where Roberts may be at.


It’s important to understand how Roberts tends to approach his role on the Court. He is a staunch institutionalist. He puts a lot of energy into protecting and defending the legitimacy of the Court. In 2016, Roberts was in the dissent in a case called Whole Woman’s Health v. Hellerstedt, which struck down an abortion regulation requiring abortion clinics to be within close proximity to a hospital and have admittance privileges in case of a medical emergency. Just 3 years later, Roberts effectively switched sides in voting to strike down a similar law in a case called June Medical Services v. Kleibert. Although he originally was for such a regulation in 2016, he cited stare decisis as a reason he now opposed it. He is very hesitant to rock the boat. Slow change is more his style. And he signaled as such in his line of questioning. Roberts focused heavily on the viability line, stating that it was not at issue in Roe/Casey and therefore, he is uncertain why it is viewed as established law. He goes even further in signaling his disdain for America’s abortion laws by highlighting how we more closely resemble abortion laws of China and North Korea as opposed to are generally left-leaning friends in Europe. Taking all this together leads to a reasonable assumption that Roberts will vote to maintain Roe/Casey but also uphold the 15-week abortion ban by redefining the undue burden standard, shedding the viability line.


So that gives us 6 votes to uphold the 15-week abortion ban and 5 votes to overturn Roe/Casey. But since the majority only requires 5 votes, why does Roberts matter? Because a lot can happen from now until the decision becomes final, as past history shows. We have discussed how Casey established the undue burden standard. But that was a shocking outcome. It was believed that Casey would be the case to overturn Roe. After a case is argued, the 9 Justices schedule a conference where they preliminarily cast their votes, and assign who will write the majority opinion. But there is a lot of time in between the conference and the final decision. And that time is filled with politics, arguing, and lobbying. After the Casey conference, there was a 5-vote majority to overturn Roe. And then the famous flip happened. Kennedy, who was said to have been influenced by Harvard law professor Lawrence Tribe, formed his own 5 person majority to uphold Roe, but establish the undue burden test. A one-time respected conservative Justice nominated by President Reagan left the pro-life movement stunned. Don’t think that can’t happen again. Especially since Roberts, being the Chief, will get to pick who writes the opinion as long as he is not in the dissent. Expect there to be ample pressure from Roberts internally and countless special interest groups externally lobbying to find one more Justice to pull a Kennedy flip 2.0 to save Roe/Casey.


Regardless of what happens, we must remember that the ultimate goal of the pro-life movement is not to overturn Roe. It is not to change the laws. It is to change the culture, to establish a culture of life through love, charity and compassion. It is to achieve a culture where abortion is unthinkable, where no woman feels desperate or scared enough to choose such an unfortunate outcome. If Roe/Casey is overturned, it is even more crucial to understand that our work only gets harder. Yes, an America without Roe means an America with less abortions. But an America with less abortions also means an America with more new babies and an American with more struggling and scared mothers. Overturning Roe is a small step in establishing a culture of life. So help that struggling mother in need down the street. Donate your time and energy to the underprivileged family with young kids in your neighborhood. Volunteer at your local pregnancy center. Offer a helping hand to the mothers the Pro-Life Union services at Guiding Stars and the Cenacle. Especially during this wonderful Christmas season. As always, thank you for reading. Please share this article to help spread a hopeful message of life. God bless.



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