The Supreme Court this week heard oral argument on the Mississippi law that limits abortion after 15 weeks from conception.
As someone who practiced law at the Supreme Court, I listened to the arguments. I think they’ll uphold the Mississippi law. I have a few observations.
Keep in mind that oral argument at the Supreme Court is typically more theater than jurisprudence. The Justices usually already have their minds made up from reading the briefs. But it’s worthwhile theater because it connects the public to the judicial process. Also, it gives some insight into the likely decision which won’t come till next Spring.
My first observation is that much of the public is confused about what the Court is deciding and what it is not. Blame the media for that. Clicks are generated and fires are stoked not by the media presenting cases, but by presenting parades of horrible.
Here, the Court is not considering whether to ban abortion. That’s not on the table. What’s on the table is whether the Court will uphold the law enacted by the legislature of Mississippi which limits abortion in that state after 15 weeks.
It’s worth mentioning that the Mississippi law is consistent with the abortion laws of most other civilized countries. Hardly any countries around the world permit unrestricted abortion rights up till birth, as the pro-choice lobby wants for the U.S.
Moreover, even if the Mississippi law is upheld, abortion will still be wholly unrestricted in other states, even post-15 weeks. Upholding the Mississippi post-15 weeks law will not affect the permissive abortion laws of New York or California or any other state where the people’s elected representatives choose not to enact similar laws.
The three liberal Justices went hard at the lawyer arguing in favor of upholding the law, as expected. Many of their questions were more like speeches, as is their right. But interestingly, they focused not so much on the merits of the law. Rather, they focused on the legal doctrine of stare decisis.
That’s the principle that courts should be loath to change the law, that they should defer to the law as laid down in earlier cases. That’s a good principle, because it means the courts don’t change the rules in the middle of the game. People should know what the law is, and that it won’t be changed willy-nilly after they act in reliance on it. To disregard stare decisis is to permit ex post facto laws.
But stare decisis is not absolute. The Court does occasionally overrule a case when they decide it was wrong. For example, “separate but equal” was considered Constitutional for decades. That was wrong, and the Court eventually corrected itself.
As for the merits of the Mississippi law, which the liberal wing of the Court mostly ignored in favor of stare decisis, the issue before the court is not whether abortion is a good thing or a bad thing. It’s whether (1) abortion restrictions should be left to the people’s elected representatives or, alternatively, (2) there’s a Constitutional prohibition on the people’s representatives doing so.
Serious legal scholars generally agree that the reasoning of Roe v. Wade establishing a Constitutional right to abortion — alternative (2) — is weak. Even liberal Justice Ruth Bader Ginsberg was critical of the Court’s reasoning in Roe v. Wade.
The Constitution simply does not mention abortion, explicitly or implicitly. The Roe v. Wade Court instead invented the right to abortion by analogy to other Constitutional rights. Abortion was known and sometimes practiced at the time the Constitution was written, and the Founders could have provided for it there. They indisputably did not.
The conservative Justices can afford to lose one of their six, and still win a 5-4 decision to uphold the Mississippi law. The conservative Justice wavering most is Chief Justice Roberts. He is concerned about the Court’s status. That’s a good thing to be concerned about, especially for the Chief.
One last point, related to the point about the Supreme Court’s status as an institution. It has become politicized. We have ourselves to blame for that. It’s because the Justices have been tasked with too many issues involving too much politics which should have been deliberated in Congress and state legislatures but the politicians there were too cowardly to tackle the issues and the people were too lazy to make them.
That’s well illustrated by this abortion issue. It’s a vexing religious, philosophical and societal issue, but it’s not really a Constitutional one. It should have been left to the people’s representatives – state legislatures and Congress, as the Founders intended – and not to the courts.
The Supreme Court is not supposed to respond to popular political sentiment or even religious or philosophical sentiment. It’s supposed to apply the law. As a political institution, the Supreme Court is lousy by design.
But as a court of law, the Supreme Court is still great. The Justices are brilliant and accomplished jurists, though some more than others. The Court has been nearly free of scandal through two and a half centuries. In private practice, the Justices could make tenfold their government salaries. They choose instead to serve their country in a job that is fascinating but pays relatively poorly.
Listen to the audio of the oral arguments. I wish the other branches of government would be half as civil and smart as the Justices of the Supreme Court.
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Professor Robert George was featured on a First Things podcast explaining why he believes this law will be upheld. The Left/Big Fem are beating drums about “reproductive rights” an ironic term given they want the right NOT to reproduce. But their arguments are old, tired and without merit. Adding to the volume isn’t that compelling.
And isn’t it interested that Stare Decisis only when it supports their narrative?
It’s wrong to kill innocent human beings. Not that difficult of a concept is it?
Years ago I read a lady’s comment to the effect that abortion should be neither legal nor illegal but simply unthinkable. That appealed to me as the truth in the matter.
Thanks for watching this, and for your insights.
It seems to me that the Court can re-establish its reputation by getting OUT of the abortion debate, where it placed itself in 1973. We have legislatures, which are the proper places for laws to be made.
Hope you’re right, Glenn, but I’ve lost all confidence in SCOTUS guts. We already know progs are cowards because they’re bullies. And the performances of the so-called conservative justices over the last year, excepting Thomas and Alito, were disgusting. Every time they had a chance to rule conservatively they chickened out.
Thanks for this informative column.
Human rights are inalienable, the right to life being the highest right. It comes from being a human being, and can only be forfeit through capital offense. When the Constitution was ratified, the obsolete notion of “quickening” was held – that the unborn child “became alive” when the mother could feel his movements. When the nature of conception was discovered, every state outlawed abortion, recognizing our inalienable right to life – from the time we became human. To state that the Constitution says nothing about abortion is in a narrow sense true but in a wider sense is as foolish as saying “the Constitution says nothing about murder.”
As a layman not a lawyer my understanding of the SCOTUS was to determine the Constitutionality of the matter before them and nothing else. To my sensibilities it’s been politicized for some time, like since the 90s.
I’m really happy my mother didn’t believe in abortion on demand. In fact, every person I’ve ever met is happy their mothers didn’t abort them.
This is apparently an informative and objective column. I appreciate it. Morally, when, if at all, abortion becomes “murder” is a subjective decision. My own preferences is to leave it alone, leave it to the mother. That’s essentially what not politicizing it means – that it should not be a matter of social policy,but should rather should be left to personal morality. Kicking it from the Court to each State does not depoliticize the issue. It just changes where policy is made. Nonetheless, I think the court is doing the constitutionally correct thing because it should not be in the policy-making business. I cood of course, be wrong about that. I should probably read the actual Roe v Wade decision to help inform my opinion, as should anyone who wants to discuss this volatile subject in an intelligent and reasonable way. Glenn I feel certain, has done that and more.
Did you know that the science of obstetrics and pediatrics now allows surgery to be done on pre-viable babies?
And why, when a pregnant mother is killed, is the perp often charged with he murder of the unborn baby?
“ . . . leave it to the mother” ? You seem either unable or unwilling to concede that the unborn fetus is ANOTHER life, ANOTHER human individual, and that, consequently, “personal” morality has to take a seat alongside “social” interest/welfare and policy-making. I agree that abortion is seldom “murder,” since by definition that would require the element of malice toward the unborn. It is still killing.
Good commentary. What haunts me a day later is Sotomayor’s tortured analogy between an unborn fetus and a dead body, by virtue of the fact that both respond to stimuli, etc. It’s like having Josef Mengele on the Supreme Court. But, of course, being a “wise Latina” in a world in which only white people are Nazis, she is entitled to “parade the horrible,” as you said of the media.
Glenn, exactly how did you “practice before the Supreme Court?” Did you argue case(s) before the court? How many? Did you submit a brief to the court?
Glenn, 2 points: 1. You say, “[stare decisis] is a good principle, because it means the courts don’t change the rules in the middle of the game.” Overruling a precedent is not changing the rules in the middle of the game. It’s simply correcting an error going forward. 2. You say, “To disregard stare decisis is to permit ex post facto laws.” Not at all. It’s merely changing the law, as id one changed a statute. It wouldn’t retroactively apply a changed law to previous actions, which is what ex post facto refers to.
Since abut 1973, SCOTUS has been creating laws, rather than interpreting laws. We now need to have term limits for SCOTUS – as well as the U. S. Congress – and as well as all federal, legislative, judicial, and executive branches of government. There are only 2 instances that I can think of where abortion would be acceptable: when the doctor says to the mother, I can save one of you, but not both. You pick. (Extremely rare nowadays). And where a very young child becomes pregnant via incest/rape. And the child is too young to physically carry a baby to full term, and the child and baby would be lost.
I do not believe that the government should have ANY financial involvement in abortions. I believe that any woman who wants a SECOND abortion (for reasons other than medical life and death) should have her tubes tied after the abortion, regardless of who pays for it. I believe every sperm donor that can be identified, should be given a vasectomy after impregnating any female not his wife a second time. I believe every convicted rapist should be castrated.
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Glenn, we love your work but disagree mightily with this statement of yours: “[Roberts] is concerned about the Court’s status. That’s a good thing to be concerned about, especially for the Chief.”a good thing to be concerned about.”
No it is not, whether “for the Chief” or V any intelligent person, NOPE.
Not when the decision is based on the instructons of the wife and daughters of the Chief Justive, Blackmun.and is pulled out of their nether regions.
correction to the previous post
Glenn, we love your work but disagree mightily with this statement of yours: “[Roberts] is concerned about the Court’s status. That’s a good thing to be concerned about, especially for the Chief.”
No it is not, whether “for the Chief” or for any intelligent person, NOPE.
Not when the decision is based on the instructons of the wife and daughters of the Chief Justice, Blackmun.and is pulled out of their nether regions.
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