Dobbs may rob SCOTUS of credibility

Roe v. Wade; Planned Parenthood v. Casey; Dobbs v. Jackson Women's Health Organization: The last of those epic U.S. Supreme Court cases, Dobbs, which the Court heard on December 1, is the (biggest) blockbuster case of this term -- and may overturn the two cases preceding it. The plaintiff, Mississippi's only abortion clinic, sued Mississippi after the state passed the 2018 Gestational Age Act, outlawing abortion after 15 weeks, except for medical emergencies or fatal fetal deformities.

Can the Supreme Court find some principled "middle ground"? Or, is it doomed to make some extreme ruling destroying not only Roe and Casey, but also the court's own delicate credibility?

Mississippi District Judge Carlton Reeves awarded the plaintiffs an injunction against the state in November 2018, following Roe/Casey's ban on banning abortions before fetal viability outside of the womb, c. 23-24 weeks of pregnancy. (Regarding abortion access and equity, he also bemoaned the Mississippi tradition of disrespecting women and minorities.) In December 2019, the 5th U.S. Circuit Court of Appeals affirmed.

Mississippi petitioned for certiorari in June 2020, but had to wait until May 2021 for approval, perhaps because the case was so controversial. (Dobbs drew over 100 amicus briefs at the merits stage.) The question presented: "Whether all pre-viability prohibitions on elective abortions are unconstitutional."

At oral argument, Mississippi Solicitor General Scott Stewart started, "Roe versus Wade and Planned Parenthood versus Casey haunt our country ... They've poisoned the law," and said the people should decide, necessitating the overturn of Roe, Casey and the viability limit. Justice Clarence Thomas asked his old clerk Stewart if any other standard could hold sway besides viability; Stewart preferred rational basis, but said that avoiding an undue burden on the woman (albeit removing the viability standard) would be the alternative.

Justice Stephen Breyer evoked Casey on the importance of not disturbing stare decisis; Stewart retorted that Casey's "undue burden" criterion was unworkable.

Chief Justice John Roberts, possibly looking for middle ground (e.g., upholding the law but not overturning Roe/Casey), mentioned Roe author Justice Harry Blackmun's private papers calling viability "dicta"; Stewart noted Casey called viability the core principle of Roe.

Justice Sonia Sotomayor said, of the notion that Mississippi's new abortion ban was because the court's membership had changed, "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" Stewart said the court could avoid the appearance of being political by respecting constitutional tradition and precedent.

Justice Elena Kagan mentioned that 50 years of precedent had passed since Roe; Stewart countered that Roe had no constitutional basis to begin with. Roberts noted that the certiorari petition didn't call for Roe/Casey's destruction as Mississippi's merits brief did; Stewart said the question presented "fairly includes what is the correct standard [re abortion]."

Finally, Justice Brett Kavanaugh asked, "[Y]ou're not arguing that the Court somehow has the authority to itself prohibit abortion[; you claim] the Constitution is silent and, therefore, neutral[,] neither pro-life nor pro-choice[?]" Stewart strongly agreed.

For the clinic, Julie Rikelman from the Center for Reproductive Rights mentioned women's liberty under Roe/Casey from carrying an unwanted child to term, and possible hurt to poor, or otherwise distressed, women from the 15-week ban. Roberts asked if 15 weeks might be enough time for a woman to choose; Rikelman said "reasonable opportunity" would be debated to mean various lengths (e.g., six- week ban), and that European countries' bans around 12 weeks were not enforced strongly.

Justice Amy Coney Barrett (who replaced the late Justice Ruth Bader Ginsburg (RIP), leaving a more "Ruth-less Court"?) brought up "safe havens," where women can drop newborn babies (relinquishing parental rights), in addressing the problem of unwanted children. Rikelman replied that adoption had already been around in Roe; and pregnancy itself is a burden.

Justice Samuel Alito noted that "the fetus has an interest in having a life" even after viability, and viability is a changeable line. Rikelman rejoined that viability provides a principled balance "between conception and birth," without having to resolve philosophical issues about personhood.

Former Ginsburg/Kagan clerk Solicitor General Elizabeth Prelogar, for the U.S. as amicus to the clinic, mentioned the law's lack of rape/incest exceptions, and that "[t]he Court has never revoked a right that is so fundamental to so many Americans" as abortion rights. Justice Neil Gorsuch asked if there could be a principled line without viability, and Prelogar replied that there was no more principled line than viability.

Finally, Stewart's rebuttal noted contraception was cheaper than the 600-some dollars the clinic charges for abortions; and compared Roe to Plessy v. Ferguson as two cases where 50-some years passed before a horrible case was overruled. (Trivia moment: The justice who wrote Plessy was named... Brown. "Stranger than fiction.")

So, readers can decide who won. This author thinks everyone lost: Both sides exaggerated, basically adopting an "all-or-nothing" approach which resembles NFIB v. Sebelius, where each side mistakenly said "Obamacare" would collapse without the forced-insurance-purchase "individual mandate," Yet "O-care" still survives -- without an enforceable mandate.

Similarly, a truncated Roe/Casey, without viability-limit and adopting the Mississippi law's 15-week ban (or 12 weeks, say), would resemble common European practice -- which has a successful history, though more social support/funding for women/infants à la Europe (reducing the "demand side" of abortion) would then be appropriate.

The main battle ahead may be Roberts trying to peel off one conservative (who?) to join him and Breyer/Kagan/Sotomayor in finding a 12/15-week middle ground. Many pundits are skeptical Roberts will succeed; but, passing months can produce unexpected results, as in NFIB.

What's easier to guess is that if the abortion rights in Roe/Casey are overturned fully, after Mississippi's Faulkneresque-Southern-Gothic-perverse bait-and-switch moving the goalposts from a mere 15-week ban, to overturning those two cases, the Supreme Court may be aborting its own credibility, for decades to come. The late Senator Bob Dole (RIP), a hearty bipartisan, might have counseled finding principled common ground instead.

May extremism be aborted, then -- not common sense. 