The United States Supreme Court heard arguments in the Dobbs v. case on Wednesday. Jackson Women’s Health Organization, a case challenging the constitutionality of Mississippi’s Gestational Age Law. State law prohibits most abortions after 15 weeks of pregnancy.
The time allotted for each side was extended so that newly appointed US Attorney General Elizabeth Prelogar could participate and include President Joe Biden’s government’s opposition to the unborn child protection laws.
Most of the discussion time was spent debating whether court decisions in Roe v. Wade and Planned Parenthood v. Casey should be overturned.
The validity of these precedents is at stake because the court, in both decisions, ruled that any prohibition of abortion before “feasibility” (when the fetus can live outside the womb) is unconstitutional. Mississippi’s ban sets a limit well in advance of viability, generally thought to be about 24 weeks.
One article that we recently published described three possible outcomes: The Court upholds the Mississippi abortion ban by overturning the precedents in the Roe and Casey cases; judges achieve the same result by narrowing or modifying—rather than nullifying—those precedents; or the court overturns Mississippi’s ban by reaffirming Roe and Casey.
While predicting the final outcome based on oral arguments can be risky, both sides on Wednesday dumped a bucket of cold water on the second option. They rejected any “half measures” that could replace the Roe-Casey standard with something else, considering them impractical. In other words, they argued, Roe and Casey must either remain or be eliminated.
The Court has established a two-step process for determining whether a precedent should be set aside. The first step is to determine whether this precedent was wrongly set. On that note, Mississippi Attorney General Scott Stewart’s opening words were that Roe and Casey “haunt our country” and have no foundation in the Constitution’s text, structure, or history.
Significantly, neither Julie Rikelman, the attorney for the law-defying abortion clinic, nor Prelogar attempted to defend either case on its merits.
The second question is whether an erroneously decided precedent should be set aside, and the court has identified several factors or criteria to help answer that question. Judge Stephen Breyer argued that the court should be “more reluctant” to overturn what he called “watershed” precedents lest the public think the judges are simply responding to political pressure.
He may have implicitly admitted that Roe and Casey would not survive the application of the court’s traditional analysis. And, as Chief Justice John Roberts noted, Breyer’s position actually suggests that the more glaringly wrong a precedent is, the more the court should resist rejecting it.
Judge Brett Kavanaugh explained that some of the court’s most important decisions had overturned precedents, citing an extensive list of decisions that included Miranda v. Arizona, Lawrence v. Texas and Obergefell v. Hodges.
His quotes also included Brown v. Board of Education, which effectively nullified the “separate but equal” principle – which provided for racial segregation – established in Plessy v. Ferguson.
If the court had simply refused to reconsider its precedents, Kavanaugh said, “this country would be a very different place.” He added that “if we think that the previous precedents are seriously wrong… why then the history of this court’s practice in relation to these cases does not tell us that the right answer is actually a return to the position of neutrality… and not adhering with these precedents in the same way as all the other cases did not?”
Several judges have asked whether legal or other circumstances have changed since Casey, which was ruled in 1992. Judge Amy Coney Barrett noted that states now have “safe haven” laws that allow mothers to deliver newborn babies to hospitals or elsewhere. designated safe havens without criminal prosecution within days of delivery, rather than abandoning them.
Barrett suggested that by separating pregnancy from parenthood, refugee laws could alleviate what the Supreme Court in the Roe case called the “damage” faced by women for carrying an unwanted pregnancy to term.
Barrett also questioned whether upholding the Mississippi abortion ban would necessarily raise questions about the validity of other Supreme Court precedents.
Stewart responded that none of the precedents involving private or personal decisions involved “the purposeful end of a human life.” In fact, even Roe v. Wade acknowledged that the presence of the unborn child makes abortion “inherently different” from other privacy rights.
In perhaps the most shocking line of questioning, Judge Sonia Sotomayor tried to argue that it is impossible to know whether the unborn child’s reaction to physical stimuli shows that he or she is in pain. Sotomayor claimed that “about 40% of dead people, when their feet are touched, the foot recoils. There are spontaneous acts of brain-dead people. So I don’t think an answer, by a fetus, necessarily proves there is a sensation of pain or that there is awareness.”
She may not be aware of current research on the subject, which shows that unborn babies can actually experience pain from the 12th week onwards.
The most important question in this case concerns the proper setting for all these questions, debates, values and arguments: Would it be the legislature or the judiciary?
Unless the Constitution clearly says otherwise, the answer is clear. The American people and their elected representatives have the authority to deal with these questions and decide on the answers.
When the Supreme Court takes them away from the people without the Constitution’s authorization, the court undermines its own credibility and legitimacy.
Sotomayor asked a question about the current case that actually applies best to the Roe and Casey cases: How can the Supreme Court “survive the stench this creates in the public perception that the Constitution and its reading are just acts?”
The answer is: how can the high court survive without overturning Roe and Casey – decisions that created a constitutional right to abortion almost out of thin air?
The court must correct its serious constitutional error and set aside Roe and Casey’s precedents so that Americans can govern themselves on abortion issues.
*Thomas Jipping is deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior research fellow at the Heritage Foundation. Sarah Parshall Perry is a research fellow in the field of law at the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.
© 2021 The Daily Signal. Published with permission. Original in english
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source https://pledgetimes.com/the-main-arguments-heard-by-the-supreme-court-in-the-case-that-could-restrict-abortion-in-the-us/
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