In nearly two hours of oral arguments on Dec. 1, 2021, U.S. Supreme Court justices, petitioners, and attorneys discussed the dismantling of Roe v. Wade and national access to safe and legal abortion before fetal viability.
The following are key comments and questions from the Supreme Court’s transcript1 of that case:
• Mississippi Solicitor General Scott G. Stewart, Esq: “For 50 years, they’ve kept this court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this court recognize a right to end a human life.”
• Justice Stephen Breyer: In quoting Planned Parenthood of Southeastern Pennsylvania v. Casey: “Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the court stakes its authority.”2
• Justice Sonia Sotomayor: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? … How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time.”
• Justice Elena Kagan: “There’s been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law, that this is part of the fabric of women’s existence in this country.”
• Respondent Julie Rikelman, Esq, litigation director of the Center for Reproductive Rights: “Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent. Mississippi asks the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will.”
• Justice Clarence Thomas: On women being prosecuted for taking drugs while pregnant: “If she had ingested cocaine pre-viability and had the same negative consequences to her child, do you think the state had an interest in enforcing that law against her?”
• Chief Justice John Roberts: “[I]f you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they’ve had a fair choice, opportunity to choice, and why would 15 weeks be an inappropriate line?”
• Justice Amy Coney Barrett: “Why don’t the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.”
• Justice Samuel Alito: “The fetus has an interest in having a life, and that doesn’t change, does it, from the point before viability to the point after viability?”
• Justice Brett Kavanaugh: “I think the other side would say that the core problem here is that the court has been forced by the position you’re taking and by the cases to pick sides on the most contentious social debate in American life … and, they would say, therefore, it should be left to the people, to the states, or to Congress.”
• U.S. Department of Justice Solicitor General Elizabeth B. Prelogar, JD: “The real-world effects of overruling Roe and Casey would be severe and swift. Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest.”
• Justice Neil Gorsuch: “If this court will reject the viability line, do you see any other intelligible principle that the court could choose?”
REFERENCES
- Supreme Court of the United States. Dobbs v. Jackson Women’s Health. Docket number: 19-1392. Dec. 1, 2021.
- Supreme Court of the United States. Planned Parenthood of Southeastern Pennsylvania, et al. v. Casey, Governor of Pennsylvania, et al. Docket number: 91-744. Decided June 29, 1992.
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