Five Takeaways From The Dobbs v. Jackson Oral Arguments


Nora Howe


Reproductive Rights

Photo Credit: AFJ/Rachel Bracken

On Wednesday, December 1, 2021, the U.S. Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization, a case brought against Mississippi for a law banning abortion after 15 weeks of pregnancy. The law has no exceptions for rape, incest, or the life of the pregnant person and is in clear violation of decades of precedent dating back to Roe v. Wade. In Roe, the Court held that the right to access abortion pre-viability is a fundamental right, opening the door to decades of improved health, educational, and employment opportunities for all birthing people.

Before reaching the Court, both the Southern District of Mississippi and the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the plaintiff-clinic, holding the state law unconstitutional. The district court, which granted a preliminary injunction against the state before ruling in favor of the clinic, held that “the Mississippi Legislature’s professed interest in ’women’s health‘ is pure gaslighting” and cited the state’s “long history of disregarding the constitutional rights of its citizens.” The Court of Appeals, in a panel made up of judges appointed by Presidents Clinton, Ford, and Trump, followed suit, unanimously upholding the district court ruling.

Even before Wednesday’s oral arguments, abortion access in Mississippi was heavily restricted. Jackson Women’s Health Organization, the plaintiff, is the last clinic that performs abortions in the state. Laws require 24-hour waiting periods and mandated counseling. Given the size of the state and the costs associated — taking time off from work, paying for childcare, finding transportation, the procedure itself — many Mississippians, disproportionately poor and people of color in the state with the nation’s highest poverty rate, already cannot seek abortions.

While the Court originally asked to hear Jackson Women’s Health arguments on a viability question, Mississippi changed course and argued on Wednesday that Roe should be completely overturned, a change Justice Sotomayor lambasted during arguments. Wednesday’s arguments showed that with a conservative, activist Court, the reproductive rights of pregnant people across America — and even other fundamental rights beyond abortion — are on life support. 

Here are five key takeaways from yesterday’s oral arguments:

1. The conservative justices seem intent on gutting Roe and Casey.

In their questioning, Justices Alito, Barrett, Gorsuch, Kavanaugh, Roberts, and Thomas showed open hostility to Roe. Thomas argued that there is no written right to abortion in the Constitution and entertained the idea of fetal personhood. Alito quizzed Julie Rikelman, of the Center for Reproductive Rights, about the role of abortion at the founding of the nation and specifically suggested that fetuses have an “interest in having a life.”

Gorsuch and Roberts asked Rikelman and Solicitor General Prelogar which standard they would propose if the decades-old viability standard was thrown out. Barrett and Kavanaugh, the Court’s newest additions, eagerly entertained the overturning of other rights-granting precedents. 

2. The lives of pregnant people were an afterthought for conservative justices.

The conservative justices consistently dismissed the interests of pregnant people. After asking Rikelman for data on the impact of Roe on women’s equal participation in society, which she presented, Roberts told her to “[put] that data aside.” Barrett asked questions about “safe haven” laws that allow parents to leave newborns at hospitals and fire stations, suggesting that abortion is unnecessary if adoption is available. In repeatedly raising safe haven laws, Barrett disregarded the toll, up to and including death, of bearing an unwanted child.

Alito focused on the right to abortion at the time of the Fourteenth Amendment, a time when Black people, women, and many other Americans did not have equal citizenship. Kavanaugh suggested that overturning Roe amounted to taking a “neutral” position on abortion, ignoring the millions of people who live in states where abortion would be outlawed by state legislatures. Rikelman responded that overturning Roe would not be a position of neutrality: “If states can take control of women’s bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the Constitution.” What we observed Wednesday was not a surprise; the impact on millions of enduring an unwanted pregnancy is not of concern to the conservative justices.

3. Conservative justices made the false comparison between Roe and Plessy.

On multiple occasions, Mississippi Solicitor General Stewart and conservative justices falsely compared Roe v. Wade to Plessy v. Ferguson, the 1896 decision that made Jim Crow segregation possible. During a question, Barrett raised Plessy in discussing precedent and in comparison to Roe. In his closing argument, Stewart inappropriately analogized a system of racial segregation and terror that Plessy enabled to the right to choose abortion: “It took 58 years for this Court” to overturn Plessy, he said, and “we’re running on 50 years of Roe.”

The comparison is nonsensical and blasphemous. As Legal Defense Fund President and Director-Counsel Sherrilyn Ifill wrote in response to these insidious arguments: “Roe recognized a fundamental right; Plessy was an affront to the very idea of universal individual rights and equality in the United States.” Roe recognized the fundamental right to access abortion care, facilitating fuller participation of pregnant people in civic and professional life. Plessy took away newly granted individual rights from Black Americans, accomplishing the exact opposite. The catastrophic Plessy decision, which denied rights to so many, must not be falsely equated with Roe’s granting of individual rights.

4. The case could serve as a blueprint for decimating other constitutional rights.

Stewart laid the groundwork for the decimation of other hard-fought rights and protections. Several fundamental rights are guaranteed by the Fourteenth Amendment through the principle of substantive due process. In calling for Roe to be overturned, Stewart emphasized that the Court was “dealing with a right that doesn’t have a basis in constitutional text.”

The conservative justices expressed agreement in several of their comments that abortion is not the only right that is not explicitly written in the constitution. Other fundamental rights not explicitly written include the right to contraception (Griswold v. Connecticut), marriage (Loving v. Virginia, Obgergefell v. Hodges) and the right to sex between same-sex adults (Lawrence v. Texas). As Sotomayor pointed out during questioning, rolling back the right to abortion puts these other fundamental rights at risk.   

5. Precedent is not a priority for the heavily politicized Court.

Once again, Wednesday’s oral arguments demonstrated the Court’s willingness to sweep aside decades of precedent. Conservative justices’ questions during oral arguments previewed explanations for pushing Roe and Casey to the side. Gorsuch and Kavanaugh both claimed that stare decisis is not as central for abortion, given that the Court is so often divided on the issue. After likening Roe to Plessy, Kavanaugh made the argument for overturning precedent by naming Brown v. Board of Education, which overturned Plessy, and Baker v. Carr, which helped enshrine “one person, one vote,” as some of the “most consequential and important in the Court’s history.” As Legal Defense Fund President and Director-Counsel Sherrilyn Ifill wrote: “Nothing in the Brown ruling suggested that future Justices should overturn precedents protecting fundamental individual rights.”

Roberts, who upheld Roe and Casey in a Louisiana case in 2020 solely because he felt it important to abide by a precedent set just four years earlier, asked questions that nevertheless suggested his willingness to gut Roe’s viability standard. The promises made by conservative justices during confirmation hearings to respect and follow precedent have never rung more hollow.

During Stewart’s argument, Sotomayor asked, “Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?” She didn’t wait for an answer before adding, “I don’t see how it is possible.” Millions of Americans who will be impacted by the Court’s decision agree.