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One 'core' issue may decide the Dobbs abortion case. Here's why

Students from Liberty University pray in front of the U.S. Supreme Court during oral arguments in the Dobbs v. Jackson Women's Health Organization abortion case on Dec. 1, 2021. / Katie Yoder/CNA

Washington D.C., Dec 1, 2021 / 15:40 pm (CNA).

The U.S. Supreme Court heard oral arguments about the constitutionality of Mississippi’s 15-week state abortion ban Wednesday, a high-stakes test of the settledness of legalized abortion in a deeply unsettled nation still sharply divided over the right to life.

The case, Dobbs v. Jackson Women’s Health Organization, is viewed by many Catholic leaders and pro-life groups as the best chance yet to overturn the court’s landmark 1973 Roe v. Wade decision, which has barred restrictive early-term abortion laws like Mississippi’s for the past 48 years.

Over that time, some 62 million abortions have taken place in the United States, statistics show, a grim toll the Catholic Church sees as both a grave evil and a catastrophic political failure.

Conversely, a decision that strikes down Mississippi’s 2018 law, called the Gestational Age Act, which prohibits abortions after the 15th week of gestation, would represent a devastating setback for the pro-life movement. For many years it has pinned its hopes of overturning Roe on the goal of securing a supermajority of conservative justices on the nation’s highest court, as is the case now.

With thousands of people keeping a vocal but peaceful vigil outside the Supreme Court on a bright, brisk morning in Washington, D.C., the nine justices took up the intensely anticipated case in a proceeding that lasted nearly two hours.

Among the demonstrators were four women shown in a viral video posted online swallowing pills behind a large sign that reads, “WE ARE TAKING ABORTION PILLS FOREVER,” a reference to the prescription drugs mifepristone and misoprostol that when used in combination will induce a miscarriage.

Mississippi is asking the court to do more than simply uphold the state’s abortion law; it wants the court to overturn both Roe and a later ruling that affirmed it nearly 20 years later, the 1992 case Planned Parenthood v. Casey. 

Both Roe and Casey “have no basis in the Constitution,” Scott G. Stewart, the state’s solicitor general, said in his opening argument.

“They have no home in our history or traditions. They’ve damaged the democratic process. They poison the law. They’ve choked off compromise for 50 years,” he said.

In Roe, the court ruled that states could not ban abortion before viability, which the court determined to be 24 to 28 weeks into pregnancy. Casey, viewed as the “Dobbs” of its day, found that while states could regulate pre-viability abortions, they could not enforce an “undue burden.” The Casey court defined that term to mean “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Stewart said the two cases have “kept this court at the center of a political battle that it can never resolve.”

“Nowhere else does this court recognize a right to end a human life,” he said.

A question of ‘settled’ law

Legal scholars see the court’s reluctance to overturn past rulings, even highly controversial ones, as Mississippi’s greatest hurdle in Dobbs.

As anticipated, that legal principle, known as stare decisis, loomed large Wednesday, dominating the litigants’ oral arguments and the justices’ questions. Justice Amy Coney Barrett, the newest addition to the court’s 6-3 conservative majority, said that stare decisis is “obviously the core of this case.”

The term comes from the Latin phrase, Stare decisis at non quieta movere, which means “to stand by things decided and not disturb settled points.”

Stewart, the Mississippi solicitor general, argued that legalized abortion remains an unsettled debate in the United States nearly a half-century after Roe. He argued that the issue should be left to democratically elected state legislatures, not the courts.

“The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work,” he said.

“Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us when an issue affects everyone. And when the Constitution does not take sides on it, it belongs to the people.”

In its court brief, Mississippi cites stare decisis as the reason Roe and Casey should be overturned.

“Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” the brief states. Roe itself broke from precedent because it invoked “a general ‘right to privacy’ unmoored from the Constitution,” the state argues.

“Abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, ‘the purposeful termination of a potential life,’” the brief states. “Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.”

But Julie Rikelman, litigation director of the Center for Reproductive Rights, sharply disagreed.

“Casey and Roe were correct,” Rikelman, who represented Jackson Women’s Health, Mississippi’s last remaining abortion provider, told the justices.

She added that there is an “an especially high bar here” as the Supreme Court rejected “every possible reason” for overturning Roe when it decided Casey nearly 30 years ago.

“Mississippi's ban on abortion two months before viability is flatly unconstitutional under decades of precedent. Mississippi asks for the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will,” she said.

“Two generations have now relied on this right,” Rikelman continued. “And one out of every four women makes the decision to end a pregnancy.”

A third attorney arguing before the court Wednesday, U.S. Solicitor General Elizabeth B. Prelogar, representing the Biden administration in opposition to Mississippi's abortion law, couched the Dobbs case in similar terms. She said overturning Roe and Casey would be “an unprecedented contraction of individual rights and a stark departure from principles of stare decisis.”

Credibility concerns

Liberal justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan argued that overturning Roe and Casey would undermine the court’s integrity by signaling that its decisions were influenced by political pressure.

“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” Sotomayor said. “I don’t see how it is possible.”

Conservative Justice Brett M. Kavanaugh, however, pushed back against that reasoning. He noted that “some of the most consequential and important” decisions in the Supreme Court’s history overturned prior rulings. He cited such cases as the historic civil rights case Brown v. Board of Education, which struck down legalized segregation, and Miranda v. Arizona, which required police to inform suspects they have a right to remain silent.

“If the court had done that in those cases (and adhered to precedent), this country would be a much different place,” Kavanaugh said. Why then, he asked Rikelman, shouldn’t the court do the same in Dobbs, if it were to deem that Roe and Casey were wrongly decided?

“Because the view that a previous precedent is wrong, your honor, has never been enough for this court to overrule, and it certainly shouldn’t be enough here, when there’s 50 years of precedent,” Rikelman responded. The court needs a “special justification” to take such a step, she argued, saying that Mississippi has failed to provide any.

Said Rikelman: “It makes the same exact arguments the court already considered and rejected in its stare decisis analysis in Casey.”

Justice Samuel A. Alito Jr., a conservative, took up a similar line of questioning with Prelogar, the U.S. solicitor general.

“Is it your argument that a case can never be overruled simply because it was egregiously wrong?” he asked.

“I think that at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn’t done so in this case,” Prelogar responded.

“Really?” Alito replied. “So suppose Plessy versus Ferguson (an 1896 decision that affirmed the constitutionality of racial segregation laws) was re-argued in 1897, so nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?”

“I think it should have been overruled, but I think that the factual premise was wrong in the moment it was decided, and the court realized that and clarified that when it overruled in Brown,” Prelogar said.

“So there are circumstances in which a decision may be overruled, properly overruled, when it must be overruled simply because it was egregiously wrong at the moment it was decided?” Alito asked.

When Prelogar didn’t directly answer the question, Alito pressed again.

“Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the court is called upon to consider whether it should be overruled?” he asked. “Yes or no? Can you give me a yes or no answer on that?”

“This court, no, has never overruled in that situation just based on a conclusion that the decision was wrong. It has always applied the stare decisis factors and likewise found that they warrant overruling in that instance,” Prelogar said.

Roberts cites China, North Korea

While the main focus of Wednesday’s proceeding related to stare decisis, there was also discussion of the viability standard established by Roe.

“I’d like to focus on the 15-week ban because that's not a dramatic departure from viability,” Chief Justice John G. Roberts Jr. said in an exchange with Rikelman.

“It is the standard that the vast majority of other countries have. When you get to the viability standard (set at 24 to 28 weeks) we share that standard with the People's Republic of China and North Korea,” he said.

In response, Rikelman said Roberts’ statement was “not correct,” arguing that “the majority of countries that permit legal access to abortion allow access right up until viability, even if they have nominal lines earlier.” She elaborated that while European countries may have 12- or 18-week limits, they allow exceptions for “broad social reasons, health reasons, socioeconomic reasons.”

A 2021 analysis by the Charlotte Lozier Institute found that 47 out of 50 European nations limit elective abortion prior to 15 weeks. Eight European nations, including Great Britain and Finland, do not allow elective abortion and instead require a specific medical or socioeconomic reason before permitting an abortion, the institute said.

The court may not announce a decision in the Dobbs case for several months. It may come at the end of its current term, in late June or early July, when major decisions are often announced.

US bishops respond to Supreme Court arguments in Dobbs v Jackson

Archbishop Joseph Naumann of Kansas City in Kansas, outgoing chair of the USCCB’s Committee on Pro-Life Activities, presents pro-life initiative Walking with Moms in Need to the U.S. bishops in Baltimore, Nov. 17, 2021. / Screenshot from USCCB video

Denver Newsroom, Dec 1, 2021 / 14:32 pm (CNA).

Catholic leaders offered statements and prayers leading up to and following the oral arguments in the case Dobbs v. Jackson Women’s Health Organization, which concerns a Mississippi law banning abortion after 15 weeks.

The arguments in favor of the law, heard before the Supreme Court earlier today, directly challenge Roe v. Wade, the 1973 ruling that legalized abortion nationwide. 

"In the United States, abortion takes the lives of over 600,000 babies every year. Dobbs v. Jackson Women’s Health could change that,” shared Archbishop William Lori of Baltimore in a statement

Lori, who is the chairman of the USCCB Committee on Pro-Life Activities, prayed for the Supreme Court to “do the right thing and allow states to once again limit or prohibit abortion.” In doing so, he said, the ruling would “protect millions of unborn children and their mothers from this painful, life-destroying act.”

“We invite all people of good will to uphold the dignity of human life by joining us in prayer and fasting for this important case,” he said.

Bishop Earl Boyea of Lansing launched a day of prayer and fasting in his diocese while the Supreme Court hears oral arguments. The day includes Eucharistic Adoration, the recitation of the rosary, Mass, and a Chaplet of Divine Mercy at Saint Mary Cathedral in Lansing. All of the events will be livestreamed on the diocese’s YouTube channel

“The campaign to abolish abortion is, at root, a spiritual battle between a civilization of love and a culture of death,” said Jenny Ingles, director of fertility and life ministries for the Diocese of Lansing, in a statement. “Hence we need to employ spiritual means in order to finally prevail and win victory for the unborn, their mothers, fathers, families and the common good of all in the United States.”

According to the statement, Bishop Boyea issued a letter to all priests in the diocese to consider adopting a similar schedule for their parishes. 

Other clerics shared their support and asked for prayers on social media platforms. 

“Please pray for the Supreme Court and for these women who need our love and support,” said Archbishop Salvatore Cordileone of San Francisco on Twitter.

Cordileone has been vocal about the right to life of the unborn, calling on the faithful to pray for congresswoman Nancy Pelosi, a Catholic from his diocese who supports abortion. 

Bishop Thomas Tobin of Providence also asked for prayers on his Twitter account. 

“This is a defining moment for our nation,” he said in a Tweet. “Will we continue to destroy innocent unborn children and exploit very vulnerable women, or will we promote an authentic culture of life?” 

Father Dan Beeman, a priest in the Diocese of Richmond, asked for the Supreme Court to “do the right thing and respect every human life” on his Twitter account, invoking the help of the Virgin Mary. 

Father Steve Pullis, director of evangelization, catechesis, and schools for the Archdiocese of Detroit, stated “End Roe; End Casey. Build a Culture of Life,” on his Twitter account.

On Nov. 18, the USCCB held an ecumenical prayer event to rally the pro-life faithful before the Dobbs oral arguments. The event featured prominent pro-life speakers, including Archbishop Joseph Naumann of Kansas City in Kansas. 

“Our nation stands guilty of not only promoting, endorsing, and enshrining abortion across the land, but we are responsible for exporting abortion throughout the world in a sinister form of colonial imperialism,” said Naumann during the national event. 

Naumann, who was the chair of the USCCB’s pro-life committee prior to the election of Archbishop Lori to the position in 2020, said the faithful need to “pray, fast, and work harder to end this pandemic of child sacrifice.”

Legal experts say the Dobbs v. Jackson case presents an ideal opportunity for the Supreme Court to reconsider previous rulings that upheld legal abortion nationwide. Decisions in high profile cases such as Dobbs tend to come at the end of the Supreme Court’s current term, which could be in late June or early July of 2022.

Detroit archbishop 'heartbroken' over Michigan school shooting

Stuffed bears sit at a makeshift memorial outside of Oxford High School on December 01, 2021 in Oxford, Michigan. Yesterday, four students were killed and seven injured when a gunman opened fire on students at the school. A 15-year-old sophomore, believed to be the only gunman, is in custody, / Scott Olson/Getty Images

Detroit, Mich., Dec 1, 2021 / 14:16 pm (CNA).

Archbishop Allen Vigneron of Detroit said he was “heartbroken” on Tuesday after hearing of the “horrific tragedy” of a school shooting outside the city earlier in the day. 

“I am heartbroken to hear of the horrific tragedy at Oxford High School,” Vigneron said in a Nov. 30 tweet.

“On behalf of the clergy, religious, and faithful of the Archdiocese of Detroit, I offer heartfelt prayers for the victims, their families, and all those affected in our community,” he added. 

In a follow up tweet, the archbishop said: “May our Blessed Mother wrap all those wounded — physically, emotionally, or spiritually — in her loving mantle and offer them consolation in the difficult days ahead.”

The suspect, a 15-year-old student at Oxford High School, opened fire mid-day Nov. 30. The school is located in Oxford, Michigan, about 45 miles north of Detroit. Four students have died as a result of injuries suffered, and six more students and a teacher are gravely injured. 

The suspected shooter has been taken into custody. According to the local sheriff’s department, the boy did not resist arrest. 

The Twitter account for the United States Conference of Catholic Bishops commented that “We join @DetArchbishop in offering our prayers for the tragedy at #oxfordhighschool.”

According to a tweet from the Michigan Catholic Conference, St. Joseph Catholic Church in Lake Orion held a Mass for “healing and peace” Nov. 30.

“Our thoughts and prayers are with all those affected by today's senseless act of violence #oxfordhighschool,” it added.

St. Joseph’s parish is the closest Catholic church to Oxford, Detroit Catholic reported. Father John Carlin, the associate pastor at St. Joseph’s, gave the homily to a crowd of students, parents, and parishioners, according to Detroit Catholic.

Carlin reminded those who filled the church that God hears their prayers and cries and said that nothing is stronger than Christ’s victory over death, Detroit Catholic reported.

Carlin said that “we don't understand” when we experience a loss of friends or loved ones. He said that Christ “wants not only to walk with us in that darkness, but to let us know that He is there.” 

“He’s not going anywhere, and He never will,” he added.

Clergy from St. Joseph counseled those present after Mass, Detroit Catholic reported. Eucharistic adoration was offered afterwards, and confessions were heard as well.

French Catholic academy critiques landmark abuse report

Jean-Marc Sauvé speaks at the launch of the Independent Commission on Sexual Abuse in the Church report in Paris, France, Oct. 5, 2021. / Screenshot from CIASE Facebook page.

Paris, France, Dec 1, 2021 / 13:00 pm (CNA).

The criticisms sparked resignations from the academy.

Pro-lifers win right to appeal ruling on German municipality’s prayer vigil ban

Pavica Vojnović, leader of the pro-life prayer vigils in Pforzheim, Germany. / ADF International.

Pforzheim, Germany, Dec 1, 2021 / 12:00 pm (CNA).

The challenge was spearheaded by a member of 40 Days for Life.

Dutch Catholic bishops cancel Christmas Midnight Masses due to COVID-19 pandemic

The dome of the Cathedral of St. Bavo in Haarlem, the Netherlands. / Frank de ruyter via Wikimedia (CC BY-SA 3.0 NL).

Rome Newsroom, Dec 1, 2021 / 08:30 am (CNA).

No Catholic Masses or other parish functions will be allowed to take place after 5 p.m.

How to listen to Supreme Court oral arguments in Dobbs abortion case

The exterior of the U.S. Supreme Court in Washington, D.C. / Shutterstock

Washington, D.C. Newsroom, Dec 1, 2021 / 07:59 am (CNA).

The U.S. Supreme Court will hear arguments today, Wednesday, Dec. 1, in the case Dobbs v. Jackson Women’s Health Organization. The case has the potential to overturn Roe v. Wade, which would return the issue of abortion to individual states. 

Cameras are not permitted in the chambers, but audio from the arguments will be broadcast on C-SPAN. Arguments are scheduled to begin at 10 a.m. EST. 

You can listen here:

Members of the EWTN News team, including reporters from CNA, will be on the ground in front of the Supreme Court. Follow along with their tweets here: 

Highlights from the Supreme Court's oral arguments in Dobbs v. Jackson Women's Health

Groups gathered outside the Supreme Court on Wednesday, Dec. 1, ahead of oral arguments in the case Dobbs v. Jackson Women's Health. / Katie Yoder

Washington D.C., Dec 1, 2021 / 07:15 am (CNA).

This post will be continuously updated.

As the Supreme Court is set to hear arguments in the case Dobbs v. Jackson Women's Health, activists both opposed and in favor of abortion rights gathered outside the court in the early morning hours on Wednesday, Dec. 1.

CNA is outside the court and will be providing on-the-ground updates. (All times EST.)

11:55 a.m. The Supreme Court adjourns.

11:54 a.m. In his closing rebuttal, Stewart compared Dobbs v. Jackson Women's Health to Brown v. Board of Education.

"In closing, I would say that in the dissent of Plessy v. Ferguson, Justice Harlan emphasized that there is no caste system here; and the humblest in our country is the peer of the most powerful. Our Constitution neither knows nor tolerate distinctions on the basis of race," he said.

"It took 58 years for this court to recognize the truth of those realities in a decision. And that was the greatest decision that this court ever reached. We're we're running on 50 years of Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country, and will continue to do so and take innumerable human lives," until it is overruled.

11:48 a.m. Prelogar states that she does not think "there's any line that could be more principled than viability."

"I think the factors the court would have to think about are what is most consistent with precedent, what would be clear and workable, and what would preserve the essential components of the liberty interest," she said. "Viability checks all of those boxes, and has the advantage as well as being a rule of law for 50 years."

11:45 a.m. Scenes outside the Supreme Court

11:33 a.m. "Shout Your Abortion" shares a video of women allegedly taking Mifepristone, the first drug in a two-drug abortion regimen, to cheers in front of the Supreme Court.

Mifepristone blocks the hormone progesterone from reaching the unborn child, and is used to terminate pregnancies under 10 weeks gestation.

11:26 a.m. U.S. Solicitor General Elizabeth B. Prelogar begins her arguments in support of Jackson Women's Health.

11:25 a.m. Rikelman has ended her arguments.

11:20 a.m. Justice Brett Kavanaugh notes that "when you really dig into it, history tells a somewhat different story" regarding stare decisis.

"I think that is sometimes assumed if you think about some of the most important cases, the most consequential cases in this court's history, there's a string of them where the cases overruled precedent," said Kavanaugh, singling out Brown v. Board of Education, Lawrence v. Texas, and Miranda v. Arizona as examples.

11:15 a.m. Alito questions Rikelman about the historical precedent in Roe/Casey. He asked if states had recognized abortion at the time of the 14th Amendment--there were none, said Rikelman, but says there was "common law."

Rikelman could not provide a case recognizing abortion as a right.

11:06 a.m. Alito calls the viability line "arbitrary," and says that it does not make sense.

"If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed," said Alito. "The fetus has an interest in having life, and that doesn't change."

10:56 a.m. Justice Amy Coney Barrett questions Rikelman about "safe haven" laws, which permit a woman to terminate parental rights by placing the child for adoption shortly after they are born.

Rikelman notes that this case is not just about parenthood, and says pregnancy is potentially dangerous.

10:53 a.m. Chief Justice John Roberts asked Rikelman if a 15-week line could be more workable as a legal standard than viability.

"It seems to me that (viability) doesn't have anything to do with choice," said Roberts. "If it really is an issue about choice, why is 15 weeks not enough time?"

Rickelman said it would not, as enacting a pre-viability line would result in states moving to ban abortions earlier and earlier in a pregnancy.

10:46 a.m. Julie Rikelman, senior director of the Center for Reproductive rights, begins her arguments before the court.

"Casey and Roe were correct," she says. She added that there is an “an especially high bar here” as the Supreme Court rejected “every possible reason” for overturning Roe when it decided Casey.

"Mississippi's ban on abortion two months before viability is flatly unconstitutional under decades of precedent, " said Rikelman. "Mississippi asks for the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will."

10:31 a.m. Justice Samuel Alito questions Stewart regarding the idea that being pro-life is a religious view only, and asks if any secular bioethicists believe life exists prior to viability.

"It's not tied to a religious view," says Stewart, who said that there are a host of secular people who have differing views on when life begins.

10:12 a.m. Justices Stephen Breyer and Elena Kagan are pressing Stewart on the issue of stare decisis.

Here's a breakdown about why this legal concept is so pivotal in the Dobbs case.

10:03 a.m.
Roe v. Wade and Planned Parenthood v. Casey "have no basis in the Constitution," said Stewart. "They have no home in our history or traditions. They've damaged the democratic process. They poison the law. They've choked off compromise for 50 years."

Stewart said those cases have "kept this court at the center of a political battle that it can never resolve."

"Nowhere else does this court recognize a right to end a human life," he said.

10 a.m. Oral arguments will be starting momentarily. Video is not available, but an audio recording is provided by C-SPAN. Listen live here.

9:50 a.m. Arguments are set to begin in 10 minutes, and are scheduled to last 70 minutes. Normally, reporters and members of the public would be permitted to observe arguments, but the ongoing COVID-19 pandemic has put a stop to this practice.

Scott G. Stewart, the solicitor general of Mississippi, will have 35 minutes to represent the state.

For Jackson Women’s Health Organization, Julie Rikelman, litigation director of the Center for Reproductive Rights, will have 20 minutes. U.S. Solicitor General Elizabeth B. Prelogar will also have 15 minutes to argue in support of Jackson Women’s Health Organization.

The crowd outside the court continues to swell as the "Empower Women, Promote Life" rally goes on.

9:02 a.m. This is Marion, from Mississippi. She told CNA that she remembers Roe v. Wade, and says that her generation allowed it to happen. That’s why, she said, her generation must also work to reverse it.

The Supreme Court first heard arguments in Roe v. Wade on Dec. 13, 1971, almost exactly 50 years ago. The case was then re-argued in front of the court on Oct. 11, 1972, and the court announced their decision in the case on Jan. 22, 1973.

8:33 a.m. Mississippi Attorney General Lynn Fitch said today is a "new chapter in American history, leaving behind the false premise that abortion levels and the playing field for women."

8:00 a.m.: It's a chilly 36 degrees, but people have assembled in front of the Supreme Court. A fence serves as a physical barrier between the two opposing groups.

Vatican archbishop ‘ultimately very optimistic’ about Catholic-Serbian Orthodox relations

Vatican Archbishop Paul Gallagher in 2018. / Bundesministerium für Europa, Integration und Äußeres via Wikimedia (CC BY 2.0).

Belgrade, Serbia, Dec 1, 2021 / 07:00 am (CNA).

Archbishop Paul Gallagher was speaking during a visit to Serbia.

EU Catholic bishops lament ‘anti-religious bias’ in guide discouraging word ‘Christmas’

Cardinal Jean-Claude Hollerich, S.J., pictured at the Vatican on Oct. 10, 2018. / Daniel Ibáñez/CNA.

Brussels, Belgium, Dec 1, 2021 / 03:05 am (CNA).

Cardinal Hollerich said that Christmas was part ‘of European reality.’