Emmy Griffin / December 3, 2021

A Flicker of Hope for Pro-Lifers

Though attempting to divine an outcome is risky, SCOTUS seemed open to upsetting Roe’s precedent.

The case of Dobbs v. Jackson Women’s Health Organization is the most monumental abortion case of this generation. Upon reflecting on the remarks of the justices and lawyers, there does seem to be a flicker of hope that the precedent set by Roe v. Wade and affirmed in Planned Parenthood v. Casey might be overturned.

Neither side left the justices any wiggle room to address this case incrementally without upsetting the precedent represented in Roe. From the get-go, the defenders of Roe clung to the fact that this had been the standard for 50 years. But when the legitimacy of the law was brought into question, they were at a loss.

Justice Clarence Thomas inquired not once but multiple times what right in the Constitution covers abortion. He asked: “I know your interest here is in abortion, I understand that, but, if I were to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would it be?” (Here he is specifically referring to Section 1 of the 14th Amendment.)

The pro-choice counsel answered: “It’s liberty, Your Honor. It’s the textual protection in the Fourteenth Amendment that a state can’t deprive a person of liberty without due process of law, and the Court has interpreted liberty to include the right to make family decisions and the right to physical autonomy, including the right to end a pre-viability pregnancy.”

The Constitution doesn’t deprive or restrict the activity that produces children, nor does the bodily autonomy of the mother supersede the child. Moreover, originalists don’t recall the liberty to murder someone as part of the 14th Amendment. Neither did Justice Thomas, since he kept asking for clarification as to which part of the 14th Amendment covered abortion rights.

Justices Stephen Breyer and Brett Kavanaugh even had a heated discussion over precedent, though Justice Sonia Sotomayor’s argument was the most egregious. Her reasoning for not wanting to consider overruling precedent is that it would make the Court appear illegitimate. It’s as if she talked beforehand to House Speaker Nancy Pelosi, who fulminated, “Any failure to fully strike down the Mississippi ban would seriously erode the legitimacy of the Court.”

Sotomayor had a lot to say regarding precedent being challenged from a medical standpoint. Solicitor General Scott Stewart’s argument for overturning Roe was that we know more medically about babies in the womb than we did 48 years ago. A fetus will cringe away from something that prods her long before the viability line (24 weeks gestation, according to Casey).

Sotomayor said: “Virtually every state defines a brain death as death. Yet, the literature is filled with episodes of people who are completely and utterly brain dead responding to stimuli. There’s about 40% of dead people who, if you touch their feet, the foot will recoil. There are spontaneous acts by dead brain people. So I don’t think that a response … by a fetus necessarily proves that there’s a sensation of pain or that there’s consciousness.”

This argument is preposterously weak. It’s comparing apples to oranges. A baby in the womb is alive and responds to stimuli as a result of growing and adapting to the world around it. A dead person is by definition dead; they are no longer growing or alive. The fact that the baby is alive is not in question during an abortion. The real question is whether or not that life can be cut short by his or her mother’s execution order.

Most amazing of all though was Justice John Roberts, who on the one hand felt the gravity of overturning Roe and its precedent, but on the other hand was baffled by the pro-choicers’ counsel tittering over a 15-week abortion ban, which isn’t much less than the 24-week viability line established in Casey. For this justice — who is notoriously wishy-washy — that’s a significant concession.

The Supreme Court justices have a monumental decision on their hands. The precedent instilled by Roe and affirmed by Casey, which is bad law and unconstitutional, would be an incredible victory. It took our country 90 years to end America’s Originals Sin, slavery. Maybe it’ll only take 50 years to end our Second Original Sin.

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