The Dobbs Oral Argument: Lowlights and More Lowlights

 By Eric Segall

If you are reading this blog, you know that the most important abortion case in 30 years was argued this morning at the Supreme Court. As expected, precedent was a major issue (especially for the liberals) while the location of where the right to terminate a pregnancy comes from was a major topic for the conservatives. Below are lowlights from the argument, which was much more theater than legal or even policy discussion. At the bottom of the post, I offer a few predictions about what is to come. 

1) Chief Justice Roberts, whom as Mike points out here, seemed obsessed with saying a fifteen week ban gives women enough choice to satisfy Casey's undue burden test, completely underestimates how many women have to make gut-wrenching decisions about whether to continue their pregnancies because of dramatically changed health conditions of the fetus or other family issues and tragedies. His insensitivity to those questions is unpardonable. Mike also points out in his post numerous other problems with Roberts' apparent position that a 15 week ban is consistent with Casey. It is not.

2) Justice Barrett repeatedly suggested that "safe haven" laws dealing with adoption drastically minimize the burdens on women of states forcing them to carry fetuses to term against their wills. This posture ignores many realities about pregnancy and adoption. Her perspective on that corner of this debate is awful. As Mike tweeted out during the argument, his wife and law professor Sherry Colb decimated this argument here.

3. Justice Alito was just a jerk throughout the argument showing no empathy at all that there may be two sides to this very difficult question. Admittedly, this observation could be applied to Alito during most arguments.

4. The Solicitor General of the United States, arguing on behalf of the clinics, who otherwise did an excellent job, was asked whether the Court has ever reversed a case for no reason other than it was wrongly decided the day it was issued. She said no. That is just wrong. The examples are legion with Janus v. AFSCME and Lawrence v. Texas being just two of many examples. The reality, as I once wrote, is that the Court barely cares about precedent, especially in big cases.

5. On at least three occasions, Chief Justice Roberts referred to Justice Blackmun's private papers to argue that Roe's viability line is arbitrary. The private papers of a Justice! This is unforgivable, especially as Blackmun joined the Court's reaffirming of the viability line in Casey.

6. There was precious little discussion of what should be the most important legal question in the abortion context: can women be equal in our country without having the right to control their bodily integrity and their reproductive freedoms. In my humble opinion, the equal protection clause is where this legal battle should be fought in the courts if it is going to be fought there at all.

7. Chief Justice Roberts referred to what other countries have done regarding abortion and how the viability line is an outlier. Okay, but as I have documented on this blog, we are the only country in the free world without a national paid family leave plan, and we are terrible at providing support to poor women and families after a fetus is born. Those facts seem relevant.

8. Justice Thomas asked numerous times about women endangering their fetuses through drug use or negligent conduct and whether states can deal with that problem appropriately. This entire line of questioning seemed very odd and had nothing to do with the facts of this case or the Mississippi law. The major case he relied on he admitted involved a post-viable fetus.

9.  Justices Kavanaugh and Barrett, who talked a lot about adhering to precedent during their confirmation hearings, seemed much less concerned about that issue today, surprising no one on the planet.

10. It was helpful to listen to the arguments live. Watching them would have been much, much better.

11. My impression was that Justice Sotomayor was quite upset and her tone seemed defeated and resigned. I could report on that better if ..... see number 10 above.

12. Justice Kagan seemed much less pointed than she is usually and her tone also felt resigned.

I think the conventional wisdom coming out of the argument will be that the Court will definitely uphold the law (that's a lock), and that the conservatives will disagree on how to do it and whether to flatly overrule Roe and Casey. Readers of the blog and my work know that I am pro-choice all the way down but think the Court erred in constitutionalizing the issue because it has so damaged feminist and progressive causes across the board and because of my Thayerian views on judicial deference. We likely will soon find out if I am right or wrong about the former question, maybe not this term, but soon.