Pro-life legal experts say they're encouraged by justices' questions in Dobbs abortion case
Three legal experts are expressing optimism for a pro-life victory in the U.S. Supreme Court case Dobbs v. Jackson Women's Health Organization, a case that directly challenges Roe v. Wade, the 1973 ruling that legalized abortion nationside.
"I am hopeful that the court will take the opportunity in Dobbs to correct the grievous error of Roe v. Wade, and get the court out of our nation's abortion politics," Carrie Severino, president of the Judicial Crisis Network, told CNA after the Supreme Court heard arguments on Dec. 1.
The case involves a Mississippi law restricting most abortions after 15 weeks and centers on the question of "Whether all pre-viability prohibitions on elective abortions are unconstitutional," or whether states can ban abortion before a fetus can survive outside the womb.
In Roe v. Wade, the court ruled that states could not ban abortion before viability, which the court determined to be 24 to 28 weeks into pregnancy. In 1992, the court largely upheld Roe in Planned Parenthood v. Casey. If Roe is overturned -- one possible outcome of the Dobbs case -- abortion law would be left up to each individual state.
"Today the court did a great job articulating its constitutional role: not to pick winners and losers on divisive issues like abortion, but to remain 'scrupulously neutral,' as Justice Kavanaugh said," Severino tweeted just hours after the arguments. "The way it works out will look different in different states, but the Court should let the people decide."
Although the arguments were held in December, the Supreme Court generally releases decisions in high-profile cases, such as this one, at the end of its term in June.
"I am very encouraged by oral argument and the prospect of a favorable decision this summer, but we should keep up our prayers for the justices," legal scholar Erika Bachiochi told CNA.
Bachiochi serves as a fellow at the Ethics and Public Policy Center and a senior fellow at the Abigail Adams Institute in Cambridge, Massachusetts, where she founded and directs the Wollstonecraft Project.
She identified one part of the oral arguments that she found surprising.
"Although I suppose shouldn't have been, I was surprised by Justice Sotomayer's naked pro-abortion rhetoric, especially with regard to her question concerning the 'religious' source of a 15-week abortion ban," she said. "Does she really not know the science of fetal development?"
During the oral argument, Justice Sonia Sotomayor questioned Scott G. Stewart, the solicitor general of Mississippi.
"How is your interest anything but a religious view?" she asked. "The issue of when life begins has been hotly debated by philosophers since the beginning of time. It's still debated in religions."
She added, "So, when you say this is the only right that takes away from the state the ability to protect a life, that's a religious view, isn't it -- because it assumes that a fetus' life at -- when? You're not drawing -- you're -- when do you suggest we begin that life? Putting it aside from religion."
In anticipation of the oral argument, the Charlotte Lozier Institute, the research arm of the Susan B. Anthony List, documented information about 15-week-old unborn babies, who can, among other things, already exhibit whether they prefer sucking their right or left thumb.
Earlier this year, Bachiochi, together with law professors Teresa Collett and Helen Alvaré, filed an amicus brief representing 240 women scholars and professionals and various pro-life organizations in Dobbs v. Jackson Women's Health Organization.
In a piece published by the National Catholic Register, Alvaré, a professor of law at the Antonin Scalia Law School, George Mason University, found the oral argument "promising for the pro-life cause."
But, she added, "it would be impossible to cram into the few minutes of an oral argument all the reason, facts, principles, analyses -- and hopes -- of 50 years of pro-life argumentation," she wrote. "There was no time to call out abortion advocates' lies, more lies, and made-up statistics. No time to show that women have not depended upon abortion for their dignity and freedom, but that the opposite is true. No time to detail the miraculous, the beautiful humanity of the unborn."
"Based strictly upon the oral arguments, it is clear that Justices Sotomayor, Breyer and Kagan will vote to uphold abortion rights," she said. "It is more difficult to pronounce where the remaining Justices might fall, but their comments were largely promising."