The James Wilson Foundation on Natural Rights and the American Founding

Takeaways from Oral Arguments in Dobbs- Hadley Arkes in First Things

by James Wilson Institute on December 2, 2021

After the Supreme Court heard oral arguments in the Dobbs v Jackson Woman’s Health Organization, JWI Founder and Director Hadley Arkes proffered his thoughts on what happened and what it means for pro-lifers.

Some excerpts from the piece:

One side, we might say, was “morally challenged” or imbecilic, and the other side wasn’t sure just which fork to use. The liberal side, as ever, could not explain what was “justified” in the guideline of viability, just as it couldn’t explain why the decision in Roe was justified in the first place: Why exactly was it wrong for the laws to cast their protection over small human lives, vibrant and growing in the womb? 

“But on the other side, the redoubtable Scott Stewart, the solicitor general of Mississippi, was compelled to argue with one hand tied behind him. As smart and resilient a lawyer as he is, he was compelled to work within the standard forms of conservative jurisprudence, repeating the mantra of “text, structure, and history.” But those tests do not supply the standards of judgment that explain why Mississippi’s law banning abortion after 15 weeks was justified. And so the style of the argument was to keep steering around the question of moral substance. “

“Justice Sotomayor exceeded herself in the string of fallacies she was able to put together in just one case. No, Justice Sotomayor, Chief Justice Marshall never claimed in Marbury v. Madison that judges alone, among the officers in the government, have an obligation to consider whether the measures coming under their hand for judgment, whether bills or statutes, are compatible with the “fundamental law” of the Constitution.”

“And no, Justice Sotomayor, it is not at all true that fetuses cannot feel pain before there is a developed cortex. That claim was exploded 36 years ago in the hearings before the Senate Judiciary Committee on “fetal pain.” Professor Daniel Robinson, a highly published figure in the neural sciences, made one doctor from the Yale School of Medicine retreat from the claim that fetuses cannot feel pain before 12 weeks of gestation. As Robinson noted, “pain is surely one of the most primitive of sensations found in the animal kingdom,” and it does not depend on the “cerebral cortex.” The “specific pathways carrying ‘pain’ information,” he said, are all “subcortical.” He recalled the cases of brain cancers in which “an entire hemisphere is removed. Hemicortectomized human patients do not lose pain sensation. The thesis that there is some connection between cortical functioning and pain is simply naïve.” The reaction to pain, as he said, was reflexive; it was not “syllogistic in nature.”

My own guess is that the conservative majority on the Court will find some way of sustaining the law in Mississippi. They may even summon the nerve to overturn Roe v. Wade altogether. But if so, it will confirm the worst clichés, believed by the left and resisted by the conservatives: that the reasoning of jurisprudence is essentially beside the point. For reasons of their own, the judges will do what they wish to do.

Read the whole piece here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790