Oral Arguments in Dobbs v. Jackson Women's Health Point to a Post-Roe Future

On Wednesday, the Supreme Court heard oral arguments from Dobbs v. Jackson Women's Health, the most significant challenge to Roe v. Wade to date. The anticipation surrounding Dobbs, on both sides of the abortion issue, has been palpable. Wednesday's performance did not disappoint.

Today, on a very special edition of the BreakPoint podcast, I talk with Dr. Ryan Anderson, President of the Ethics and Public Policy Center (EPPC) located in Washington, D.C..

Anderson is a legal scholar and public intellectual. In our conversation, Ryan described the highlights from Wednesday and clarified why why this case is so significant:

It was very telling that both of the two liberal justices who spoke, Sonia Sotomayor and [Stephen] Breyer, and the two pro choice advocates in the courtroom, they never really tried to defend "Roe" or "Casey" on the merits.

The only things they appealed to are Stare Decisis; respect for precedent, the respectability of the court. "What would happen, the backlash, if we admit that we were wrong?" "We would look political…"

The most important response there is that if the previous ruling was wrong, the way that something like "Plessy v. Ferguson" was wrong, it only does further damage to the court to say. "But we're going to uphold it anyway." That's where you're looking political; that's where you're not doing law anymore.

And, so, there was several really good exchanges where Justice Alito was really, "Wait, so we couldn't have pushed back on that?" Brett Kavanaugh was also very good on this. He cited a whole string of cases where he said "[there were] dozens of major Supreme Court cases where the court overturned a bad ruling and actually, finally, got the constitution correct. And that's how we show our independence. That's how we show that we're lawyers practicing law and we're not politicians, were not doing public opinion. We're not doing public policy."

And, so I just think the response there is "Roe" and "Casey" were wrongly decided the day that they were decided. They've done grave harm to the constitution, but more importantly, they allowed grave injustices to unborn human beings. And any moment that we wait is a moment too long to finally get rid of them.

Perhaps the most important point Dr. Anderson made in our conversation is that if Roe v Wade is overturned, it's not the finish line for the pro-life movement. In reality, it's a new starting point, which will necessitate new efforts both in public policy and civil society. A post-Roe future demands more humane politics, and extra efforts on a local level to support both pre-born children and the women who find themselves in unexpected pregnancies.

Again, here's Dr. Anderson:

I think we're going to need to have a good kind of public policy. You know, child tax credits, paid family leave, things like that. That make it easier for families to form and for mothers to choose life.

We need the public policy part of this. We also need the civil society part of this. I'm a both-and type of guy, and I think the pro-life movement at its best has been both-and on this. We want good public policy.

I can't remember now who the sponsor is in the house, [but] he said we should extend, expand the child tax credit to include the nine months in the womb so that, rather than at birth, it kicks-in at conception.

There are simple tweaks like that, that could make a difference in a family's life. We need to be thinking creatively on the policy side and on the civil society side.

One particular pro-abortion argument presented during Wednesday's oral arguments is one that is commonly repeated on social media, or in conversation with friends and neighbors who support abortion: that abortion is necessary if women are going to fully participate in society as equal citizens.

During our conversation, Dr. Ryan Anderson addressed this argument thoroughly:

A world in which women rely on abortion, or women need abortion, is a sign that we have failed women. That's not a sign of women empowerment. That's not a sign of female equality. That is a sign that we have structured our society in which the male body is normative, in which women are somehow defective males and we've structured our economy, our education system, around my body as if it's the norm and that my wife's body is somehow flawed.

The scholar who's doing the best work on this is actually one of my colleagues at the EPPC (Ethics and Public Policy Center), Erika Bachiochi. I kind of want to cite my sources on this. She published an excellent book earlier this year, titled "The Rights of Women" where she more or less traces the lost history of feminism.

There was an early strand of feminism that emphasized that men and women are equal in dignity, but they're not the same; that there are two equal ways of imaging God, two equal ways of being human. Our law, our policies, our culture need to respect both of these ways of being human, and we need to craft law, policy, and cultural practices that support that.

That's not the way that the modern feminist movement went. They went the route of "equality means sameness," which meansvwomen need to succeed on the same terms as men. And that means we need to more or less sterilize ourselves. This is where someone like Mary Eberstadt is really good, on how contraception and abortion are kind of like the sacraments of the modern feminist movement.

Another response to that is Mississippi's law, the 15-week law. The vast majority of European countries have 12-week prohibitions on abortion. Are women, there suffering? Are they failing to flourish? Are they failing to have equality and dignity, and all the other buzzwords?

So, it's just very interesting to to hear the abortion advocates making it seem like Mississippi's law would be so terrible for female equality and for female dignity. The Mississippi law is actually more progressive than the average European law, and they [pro-choice advocates] don't think Europe is a bunch of backwards, Bible-thumping, blah, blah, blah.

So, I think this is both a huge opportunity, but more importantly, it's a huge obligation for the pro-life movement, to serve these women, to serve these mothers, to show that if you need abortion then we have failed you. And that, in actual reality, you don't need abortion. And we can have duties such that you won't need abortion, and we have to fulfill those duties.

To listen to the full conversation, with a full analysis by Dr. Ryan Anderson of the oral arguments in what could be the most significant Supreme Court case of our lifetime, come to breakpoint.org or find the BreakPoint podcast on whatever podcast service you use.