Perhaps I should revisit my earlier skepticism about oral arguments on Dobbs v Jackson Womens Health. Chief Justice John Roberts will hold the key as to whether the Supreme Court reverses nearly 50 years of precedent in Roe and Casey, and he seems focused in part on the politics as well as the law and Constitution. In this case, though, that may be bad news for the abortion industry:

Whoa. CJ notes our current abortion law is as extreme as North Korea and PRC, and that, perhaps, even if we don’t look to international law for precedents, we should be aware of which countries we keep company with.

— Hugh Hewitt (@hughhewitt) December 1, 2021

In fact, only seven countries allow for selective abortions past the 24-week mark — and we’re one of them. So are North Korea and China, as Roberts points out. The Washington Post fact-checked a claim four years ago by the Trump administration that US policy on abortion is so extreme that it’s only matched by six other countries, and found that claim to be true:

This statistic seemed dubious at first, because it seemed extreme for just seven countries out of 198 to allow elective abortions after 20 weeks of pregnancy. But upon further digging, the data back up the claim. We should note that some of the seven countries allow abortions after 20 weeks, but ban it after 24 weeks. And other countries have no federal limits, but legislate at the state or provincial level, similar to the United States.

Further, what is telling that research from both sides of the reproductive rights debate confirm this figure. It’s not easy to boil down complex abortion laws in a cross-comparative manner like this, and there are some minor caveats associated with this talking point. Still, we did not find the caveats rise to the level of One Pinocchio.

We award the elusive Geppetto Checkmark when a factoid surprisingly turns out to be true, as in this case.

As always, one has to bear in mind that oral arguments are designed to be Socratic. The questions are crafted to test and probe, not necessarily reveal the position of the questioner, although they certainly can. Roberts’ question might be Socratic in nature, but its departure from legal/constitutional or practical enforcement matters certainly seems like a signal that the Main Decider has deep concerns over the extreme manner in which abortion has proliferated in the US.

One interesting development so far from listening to argument and reading the indirect reading of reactions is that the justices appear to have largely dispensed with the narrower question under which cert was granted. The debate has turned into an all-or-nothing over Roe as well as Casey, mostly. However, Philip Klein thinks Roberts may still be looking for a middle ground:

As Ramesh notes, both sides seem to agree that the only way that Mississippi law can be upheld is to overturn Roe/Casey. But Roberts seems to at least be entertaining some middle ground. His questions about whether Mississippi’s 15-week ban still offers women a sufficient period of choosing, and citing similar international laws, suggest that he’s at least exploring possibility of some sort of standard that would shorten the time frame from viability, while drawing a new line. Obvious disclaimers apply about reading too much into oral arguments, especially given Roberts’ history.

Interestingly, the abortion clinic’s attorney Julie Rikelman apparently wants to leave no middle ground to find, Dan McLaughlin believes:

Rikelman tells Gorsuch, with a specific nod to Roberts, that a standard other than the current one would not work. That is a maximalist position that gives any on-the-fence Justices no room but to embrace or overturn Roe. Now she is digging in, at Alito’s invitation, on “no half measures.” This seems to me like terrible strategy for where she needs to end up.

This looks ominous for Rikelman, too. The court’s other clear establishmentarian seems intent on getting this question out of the courts altogether. Or did Brett Kavanaugh merely summarize the pro-life argument?

Justice Kavanaugh returns to stating the argument of people like me. He does it well. The Constitution is neutral so this Court must be scrupulously neutral on the question, and that we should return to a policy of neutrality.” That’s “the big picture level of their argument.” ✅

— Hugh Hewitt (@hughhewitt) December 1, 2021

Sure doesn’t sound like Kavanaugh was summarizing:

Justice Kavanaugh also on stare decisis: “History helps. When you really dig into it. History tells a really different story than some assume.” He cites Brown v Board, Baker v Carr, Miranda, West Coast, Lawrence, Mapp, Gideon, Obergefell. Bravo Justice Kavanaugh. Media take note

— Hugh Hewitt (@hughhewitt) December 1, 2021

“I assume you agree with most of the cases I’ve just listed here…If we agree the precedents are seriously wrong, then why don’t those cases tell us to return to neutrality?” Justice Kavanaugh nails it. https://t.co/vAZklxEXbK

— Hugh Hewitt (@hughhewitt) December 1, 2021

The inclusion of Obergefell is interesting, and not necessarily in a good way. The court didn’t return to neutrality in Obergefell at all. In fact, Anthony Kennedy and his majority carved a constitutional right to same-sex marriage out of the 14th Amendment in the way that the Roe court carved the abortion right out of the 4th. If Rikelman is adept enough, she could confront Kavanaugh on that point and bolster her argument that Obergefell validates the process behind Roe. Furthermore, most of those reversals prioritized individual rights, as both Stephen Breyer and Sonia Sotomayor later pointed out.

Of course, Sotomayor also offered this argument that fetuses shouldn’t be given any more privilege than your everyday corpse:

Justice Sotomayor argues that a fetus responding to a painful stimuli is the equivalent of a clinically brain dead person having a reflex response to painful stimuli. pic.twitter.com/gyUVTPIoDV

— Mockingjay.BackUp (@Mockingjay8911) December 1, 2021

Good Lord.

After listening to the argument (in part) and following along the reactions, I’m at least a little more optimistic that a majority may emerge to strip Casey from precedent, if not Roe and Doe itself. The only reasonably strong argument from preventing that is the reliance principle — that these cases are so old that too many people have relied on those decisions for them to be overturned. Andy McCarthy noted that the pro-abortion side have largely abandoned the idea of defending Roe‘s constitutionality:

We’ve said it a million times, but it is still worth emphasizing: No one credible on the pro-abortion side will try to defend Roe as constitutional law. The fascinating exchange between Justice Alito and SG Preloger proceeds from the premise that Roe is indefensible, and the question is whether it is appropriate, on stare decisis grounds, to uphold an egregiously wrong decision (e.g., Plessy v. Ferguson) even if history has not yet illustrated how egregiously wrong they are.

The court likes to get as narrow as possible in these decisions. If they can come up with a middle ground, especially if Roberts wants one, we might see a 6-3 or even a 7-2 in favor of such an outcome. Given that the pro-abortion litigants are demanding an all-or-nothing outcome, it seems more likely that we’re looking at a 6-3 decision to overturn Roe and all its successors, or a 5-4 decision in either direction. But it’s clear that this decision won’t come for months while those negotiations unwind in the Supreme Court’s offices.

Update: Over at PJM, my pal AJ Kaufman has a lengthy analysis for VIP members. Be sure to check it out; he thinks the abortion lobby should be worried. Very worried.