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- Associate Justice of the Supreme Court of the United States
The U.S. Supreme Court appears poised to dramatically weaken legal abortion protections — and it could completely overturn the landmark Roe v. Wade ruling next summer — after oral arguments in Dobbs v. Jackson Women's Health Organization on Wednesday.
The state of Mississippi defended a law passed by its Legislature in 2018 that imposes a ban on abortion at 15 weeks of gestation, and it appeared likely that at least five of the nine justices would uphold It.
This means big changes are almost certain for the future of abortion, but it does not mean that Roe — the 1973 Supreme Court ruling that found a constitutional right to an abortion before fetal viability — is certain to be overturned in its entirety. The court could institute a nationwide ban at 15 weeks.
Yet there were plenty of indications that there might be five votes to overturn Roe entirely. In that case, most abortions would be illegal in roughly half the states while remaining legal in the other half, according to state abortion laws currently on the books.
The main question among legal observers before the court heard arguments was whether the majority-conservative court was more likely to overturn Roe completely or whether it would create a new standard for when abortion could remain legal.
Under Roe and the court’s 1994 ruling in Planned Parenthood v. Casey, states cannot enact bans on most abortions until after a pregnancy has reached the threshold of fetal viability, when it is believed that an unborn child could survive outside the womb. That viability threshold is about 23 or 24 weeks.
A few things were clear from Wednesday’s oral arguments. Chief Justice John Roberts would like to uphold the law, which would effectively get rid of the viability threshold. But Roberts would also like to keep in place the central ruling in Roe that abortion is legal nationwide.
“I’d like to focus on a 15-week ban,” Roberts said at one point in his questions to attorneys for the two sides.
But the three most conservative justices on the court — Clarence Thomas, Samuel Alito and Neil Gorsuch — appeared ready to overturn Roe entirely.
Roberts needs either Justice Brett Kavanaugh or Justice Amy Coney Barrett to side with him in taking a compromise route that allows for greater limits on abortion than currently exist, without allowing states to ban the practice entirely or in most cases.
Kavanaugh, however, showed little interest in the Roberts compromise. Kavanaugh talked extensively about the idea of a court that is neutral on the issue of abortion and allows states or Congress to decide the issue. Kavanaugh, who was confirmed to the court in 2018, described the state of Mississippi as arguing that “because the Constitution is neutral, that this court should be scrupulously neutral on the question of abortion.”
“They are saying here, I think, that we should return to a question of neutrality ... rather than continuing to pick sides,” Kavanaugh said.
Julie Rikelman of the Center for Reproductive Rights, who represented the Jackson Women’s Health Organization, the only abortion clinic in Mississippi, which is challenging the law, said that “women have an equal right to liberty under the Constitution.”
“If states can force women to undergo the physical demands of pregnancy and childbirth, then they will never have equal rights under the Constitution,” Rikelman said.
And so that left Barrett as the likely deciding vote in whether to limit abortion rights or whether to send the issue to the states entirely. It was clear that Barrett, the newest justice and a devout Catholic, was not receptive to the idea that limits on abortion placed an undue burden on women, one of the legal pillars of the argument for abortion rights.
Barrett talked about safe haven laws, which “allow mothers to leave their unwanted babies in designated locations such as hospitals or churches without fear of being charged with a crime.” She said that Roe and Casey “focus on the ways in which forced parenting, forced motherhood would hinder women’s access to the workplace, and to equal opportunities.”
Then Barrett asked: “Why don’t the safe haven laws take care of that problem?”
Slate writer Mark Joseph Stern tweeted that this question is “game over for Roe.”
“She's adopting Mississippi's argument that the availability of adoption obviates the need for abortion,” Stern added in a subsequent tweet.
Other experts also said they felt that Barrett appeared uninterested in Roberts's attempts to move the conversation toward a compromise.
"It's pretty clear that some of the justices are trying to suggest that Roberts's path is not really available [and that there's] no way to get rid of viability and salvage some abortion right. Seems as if Kavanaugh and Barrett might agree," tweeted Mary Ziegler, who has written three books on the history of abortion law.
If Barrett and Kavanaugh side with the court’s most conservative wing and throw out the right to abortion, abortion would remain legal only in states that allow it.
But the fight would then move to whether the court might in the future make the opposite judgment: that abortion is unconstitutional and should be illegal in most cases across the country.
“Overruling Roe will not put an end to conflicts about abortion,” Ziegler said before arguments began. “The right-to-life movement is aiming for the recognition of personhood and the outlawing of every abortion, nationwide. Roe is just the beginning.”
Kavanaugh’s comments about the court remaining “scrupulously neutral on the question of abortion” provided a clue that even if the other four conservatives would entertain a ruling making abortion unconstitutional, he would not provide the decisive fifth vote.
Kavanaugh, Ziegler pointed out, was “stressing that [Mississippi] is not asking that the Constitution recognizes personhood.”
Yet it was clear what happened at the court was a history-shaping and earthshaking development.
“I thought the Court was afraid of looking partisan & would want to make it seem as if overruling Roe struck the justices as a hard question. I thought that would mean Roe would be gone in 2023 or 2024 rather than this year. I now think I was wrong,” Ziegler tweeted as the arguments took place.
And it was this concern that such a ruling would shake the legitimacy of the Supreme Court that elicited the most passionate comments from the more liberal justices.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” said Justice Sonia Sotomayor. “I don't see how it is possible.”