What the Justices Said During Dobbs Arguments That Has Some Pro-Life Legal Experts So Optimistic

Pro-lifers are feeling optimistic after the U.S. Supreme Court heard oral arguments Wednesday in Dobbs v. Jackson Women's Health Organization, which is considered by many legal experts to be the biggest challenge to Roe v. Wade in nearly 50 years. 

Even though the high court's decision won't be known until June, a number of court experts think the justices gave some good clues as to how they're leaning. They think at least five conservative-leaning justices appear poised to uphold the Mississippi law that bans abortions at 15 weeks of pregnancy. The justices could even take it a step further, which would mean overturning the national abortion mandate created under the landmark Roe case.

But even though some observers in the pro-life community were optimistic, they also appeared to be cautious after listening to the court's oral arguments. 

Blogging during the arguments, Michael Brendan Dougherty, a senior writer at the National Review wrote, "I agree with what is turning out to be the consensus, that it looks like at least five justices are skeptical of the holding in Roe and Casey." Casey was the 1992 ruling Planned Parenthood v. Casey, which reaffirmed Roe two decades later.

Dan McLaughlin, a former attorney and a senior writer at National Review, also wrote that the three liberal justices, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, sounded like they "expect to lose."  

McLaughlin also commented on each justice's responses. 

"Kavanaugh, seen as the swing vote, hammered away at the point that getting the Court out of abortion is the neutral, small-d democratic middle ground. That is very encouraging," he wrote. "Alito pinned down some key concessions. Roberts was uninterested in sending the case back – nobody bothered to push for that – and gave off some real signs of being uncomfortable with the current framework. Neither Barrett nor Gorsuch seemed particularly sympathetic to keeping Roe, although Barrett was very interested in teasing out the proper way of handling stare decisis. The three liberals sounded like people who expect to lose, and in Breyer's case, sounded almost elegiac notes for his view of the Court."

Still, McLaughlin advised readers, "We've had the football pulled away from us before in big cases, so take all of that with a grain of salt. But if you envisioned the Court finally overturning Roe, this is about how you'd have expected the argument to go."

John McCormack, the National Review's Washington correspondent also noted the questions asked by Chief Justice John Roberts, and his back and forth with both sides. "Big picture: Kavanaugh+4 very interested in overturning Roe," McCormack wrote. "Roberts very interested in upholding Mississippi law without overturning Roe."

Legal scholar Jonathan Turley noted the issue of the viability of the unborn, a critical question the Court is considering. Turley tweeted that Justice Gorsuch made a clear argument against the pro-choice crowd's argument by pointing out how much science has advanced in the 50 years since Roe: "Gorsuch just said viability depends on technology and 'has changed and will continue to change.'"

Gorsuch just said viability depends on technology and "has changed and will continue to change."

— Jonathan Turley (@JonathanTurley) December 1, 2021

Writing for Christian Headlines, Michael Foust noted the two most outspoken pro-life Justices Clarence Thomas and Samuel Alito also asked questions friendly to the Mississippi law. 

But Foust also reminded his readers it would take five justices on the nine-member court to uphold the Mississippi law and/or to overturn Roe. At the same time, he pointed to the despair from pro-choice advocates as a sign of how the arguments went. He cited a tweet by CNN legal expert Jeffery Toobin, who said, "If you believe that women should have the right to choose abortion, today's Supreme Court argument was a wall-to-wall disaster."

Judicial Crisis Network President Carrie Severino tweeted about clues that could indicate a ruling against Roe. "Today the Court did a great job articulating its constitutional role: not to pick winners and losers on divisive issues like abortion, but to remain 'scrupulously neutral,' as Justice Kavanaugh said." 

"The way it works out will look different in different states, but the Court should let the people decide," Severino wrote. 

The way it works out will look different in different states, but the Court should let the people decide. /2

— Carrie Severino (@JCNSeverino) December 1, 2021

In a commentary for Fox News, Severino wrote, "The conventional wisdom is that overturning Roe will cause massive societal upheaval and indelibly damage the Court's legitimacy. In fact, the reality is just the opposite. The Court's illegitimate exercise of raw judicial power in Roe usurped Americans' ability to determine whether and how to regulate abortion."

She added, "Roe has only inflicted serious damage upon our political order and social fabric. And the issue of abortion, as a policy matter, is as contentious as ever. For the sake of its own integrity, the Court can recognize that the best course is to go back to what the Constitution itself says and overturn Roe, and let the matter of determining abortion policy to the American people."

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