Justices Question Why Our Abortion Laws are Closest To North Korea and China, Thomas Grills, Sotomayor Compares Babies to A brain Dead Body
Chief Justice Roberts
ROBERTS WONDERS: IS IT A GOOD THING THAT OUR ABORTION LAWS ARE CLOSEST TO … NORTH KOREA AND CHINA?
Perhaps I should revisit my earlier skepticism about oral arguments on Dobbs v Jackson Women’s Health. Chief Justice John Roberts will hold the key as to whether the Supreme Court reverses nearly 50 years of precedent in Roe and Casey, and he seems focused in part on the politics as well as the law and Constitution. In this case, though, that may be bad news for the abortion industry:
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Only seven countries allow for elective abortions past the 24-week mark — and we’re one of them. So are North Korea and China, as Roberts points out. The Washington Post fact-checked a claim four years ago by the Trump administration that US policy on abortion is so extreme that it’s only matched by six other countries, and found that claim to be valid:
This statistic seemed dubious at first, because it seemed extreme for just seven countries out of 198 to allow elective abortions after 20 weeks of pregnancy. But upon further digging, the data back up the claim. We should note that some of the seven countries allow abortions after 20 weeks, but ban it after 24 weeks. And other countries have no federal limits, but legislate at the state or provincial level, similar to the United States.
Further, what is telling that research from both sides of the reproductive rights debate confirm this figure. It’s not easy to boil down complex abortion laws in a cross-comparative manner like this, and there are some minor caveats associated with this talking point. Still, we did not find the caveats rise to the level of One Pinocchio.
We award the elusive Geppetto Checkmark when a factoid surprisingly turns out to be true, as in this case.
As always, one has to bear in mind that oral arguments are designed to be Socratic. The questions are crafted to test and probe, not necessarily reveal the questioner’s position, although they certainly can. Roberts’ question might be Socratic in nature. Still, its departure from legal/constitutional or practical enforcement matters certainly seems like a signal that the Main Decider has deep concerns over the extreme manner in which abortion has increased in the US.
One interesting development so far from listening to the argument and reading the indirect reading of reactions is that the justices appear to have largely dispensed with the narrower question under which cert was granted. The debate has turned into an all-or-nothing over Roe as well as Casey, mostly. However, Philip Klein thinks Roberts may still be looking for a middle ground:
As Ramesh notes, both sides seem to agree that the only way that Mississippi law can be upheld is to overturn Roe/Casey. But Roberts seems to at least be entertaining some middle ground. His questions about whether Mississippi’s 15-week ban still offers women a sufficient period of choosing, and citing similar international laws, suggest that he’s at least exploring the possibility of some sort of standard that would shorten the time frame from viability while drawing a new line. Obvious disclaimers apply about reading too much into oral arguments, especially given Roberts’ history.
Interestingly, the abortion clinic’s attorney Julie Rikelman wants to leave no middle ground to find, Dan McLaughlin believes:
Rikelman tells Gorsuch, with a specific nod to Roberts, that a standard other than the current one would not work. That is a maximalist position that gives any on-the-fence Justices no room but to embrace or overturn Roe. Now she is digging in, at Alito’s invitation, on “no half measures.” This seems to me like terrible strategy for where she needs to end up.
This looks ominous for Rikelman, too. The court’s other clear establishmentarian seems intent on getting this question out of the courts altogether. Or did Brett Kavanaugh merely summarize the pro-life argument?
It sure doesn’t sound like Kavanaugh was summarizing:
The inclusion of Obergefell is interesting and not necessarily in a good way. The court didn’t return to neutrality in Obergefell at all. Anthony Kennedy and his majority carved a constitutional right to same-sex marriage out of the 14th Amendment in the way that the Roe court carved the abortion right out of the 4th. If Rikelman is adept enough, she could confront Kavanaugh on that point and bolster her argument that Obergefell validates the process behind Roe. Furthermore, most of those reversals prioritized individual rights, as Stephen Breyer and Sonia Sotomayor later pointed out.
Of course, Sotomayor also offered this argument that fetuses shouldn’t be given any more privilege than your everyday corpse:
After listening to the argument (in part) and following along the reactions, I’m at least a little more optimistic that a majority may emerge to strip Casey from precedent, if not Roe and Doe itself. The only reasonably strong argument from preventing that is the reliance principle — that these cases are so old that too many people have relied on those decisions for them to be overturned. Andy McCarthy noted that the pro-abortion side has largely abandoned the idea of defending Roe’s constitutionality:
We’ve said it a million times, but it is still worth emphasizing: No one credible on the pro-abortion side will try to defend Roe as constitutional law. The fascinating exchange between Justice Alito and SG Preloger proceeds from the premise that Roe is indefensible, and the question is whether it is appropriate, on stare decisis grounds, to uphold an egregiously wrong decision (e.g., Plessy v. Ferguson) even if history has not yet illustrated how egregiously wrong they are.
The court likes to get as narrow as possible in these decisions. If they can come up with a middle ground, especially if Roberts wants one, we might see a 6-3 or even a 7-2 in favor of such an outcome. Given that the pro-abortion litigants are demanding an all-or-nothing outcome, it seems more likely that we’re looking at a 6-3 decision to overturn Roe and all its successors or a 5-4 decision in either direction. But this decision won’t come for months while those negotiations unwind in the Supreme Court’s offices.
Contributions from Hot Air
Justice Thomas Tears Into Pro-Abortion Lawyers With Hard Opening Questions
Supreme Court Justice Clarence Thomas was sworn in on October 23, 1991. Beginning in 1996, he would take a 10-year break from asking questions from the bench, until the first case before the Court following the death of Chief Justice Antonin Scalia, his ideological soul mate.
While still measured, Thomas has been known to take lawyers to the mat when he sees fit to do so. Wednesday morning’s oral arguments in the Mississippi abortion case — that threatens to weaken Roe v. Wade if not overturn it — provided Justice Thomas the perfect opportunity to do just that, with a round of tough questions for the “pro-choice” lawyers.
Here’s a perfect example.
Justice Thomas: Does a mother have a right to ingest drugs and harm a previable baby? Can the state bring child neglect charges against the mother?
Pro-abortion attorney Rikelman: That’s not what this case is about, but a woman has a right to make choices about her body.
In this Rikelman is incorrect, most states, with the exception of a few far-left states, you will be charged with child abuse.
Thomas: 1, Rikelman: 0.
Thomas later asked:
“Would you specifically tell me, specifically state what the right is, is it specifically abortion? Is it a liberty? Is it liberty? Is it autonomy? Is it privacy?”
Jack Posobiec, the senior editor at Human Events, weighed in on Thomas’s performance, as well.
Thomas is reeling them in now
He’s asking them to tell him where any of this is written in the Constitution
Abortion Beckys are flailing about
They know there is no textual basis for Roe v Wade
As Election Wizard saw it, there were two “incredible moments” during today’s oral arguments.
Two incredible moments today from oral arguments at the Supreme Court on abortion.
1) Justice Thomas’ brilliant questioning about child neglect that tripped up the pro-abortion lawyers.
2) Justice Sotomayor’s bizarre remark that evidence of fetal pain is not proof of life.
How hypocritically left-wing of Sotomayor.
So here we are. As reported by The Washington Post Wednesday afternoon, “the [f]ate of Roe v. Wade is in the hands of” the Court following a “spirited day of debate.”
The Court suggested The Post, “signaled that it is on the verge of a major shift in its abortion jurisprudence after hearing nearly two hours of arguments from attorneys for Mississippi, an abortion provider from the state, and the Biden administration.”
Meanwhile, outside the court
We had one side singing our national anthem, standing for the sanctity of life:
After this many danced for like, leading a prayer for the little ones:
From the pro-choice crowd? They had a mass taking of the morning-after pill:
Knowing Roberts, he will not wish to upset precedence, but there is no way they can rule on this hearing without calling into question Roe v Wade. Still, Roberts being Roberts will try to figure out how to rule in the middle without upsetting the cart.
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