How likely Roe v. Wade is to be overturned, according to a reproductive rights lawyer

·3 min read
Supreme Court abortion
Protesters, demonstrators and activists gather in front of the U.S. Supreme Court as the justices hear arguments in Dobbs v. Jackson Women's Health, a case about a Mississippi law that bans most abortions after 15 weeks, on December 01, 2021.Chip Somodevilla/Getty Images
  • On Wednesday, SCOTUS held a hearing for Dobbs v. Jackson Women's Health, a case that could overturn Roe v. Wade and limit abortion rights.

  • According to reproductive rights lawyer Carol Sanger, the justices' comments and questions suggest they're more likely than ever before to overturn the 1973 decision.

  • SCOTUS could rationalize overthrowing precedent if they think society has changed enough since Roe, Sanger said.

The Supreme Court held a hearing on Wednesday for a case that has the potential to overturn 1973's Roe v. Wade decision, which gives everyone in the United States the right to seek abortions with limited government intervention.

With SCOTUS now comprising a conservative majority, law experts say there's a greater chance than ever before of the justices overruling Roe v. Wade with this current case, titled Dobbs v. Jackson Women's Health Organization.

If precedent is overturned when SCOTUS publishes a decision in 2022, each state's lawmakers will be free to create their own abortion laws.

Already, 12 states have bills in place that would automatically trigger near-total abortion bans if Roe v. Wade is overturned, and other states have bills in the works to limit or ban abortion access.

According to Carol Sanger, a Columbia Law professor who specializes in reproductive rights, the justices' commentary and questions during Wednesday's hearing suggest they are considering ignoring precedent when it comes to reproductive rights.

If SCOTUS "can come up with the rationale" for striking down Roe v. Wade — saying they made the wrong decision in 1973, or society has changed enough since 1973 to no longer need federal abortion laws — Roe v. Wade could fall, Sanger told Insider.

Some SCOTUS justices suggested abortions aren't as necessary as they used to be

The SCOTUS hearing focused on the need for abortion today, with the justices touching on adoption, birth control access, and fetal viability.

Sanger believes the conservative justices centered these aspects of modern life to suggest their existence makes abortion less important than it was when Roe v. Wade was decided.

For example, conservative Justice Barrett asked about adoption access and safe haven laws, which allow people who give birth to unwanted babies to leave them in designated drop-off areas like firehouses.

Justice Kavanaugh, who also skews conservative, mentioned birth control access and said women shouldn't fear becoming pregnant and needing an abortion if they use contraception.

"What they were doing with those questions was trying to say, 'We can break with precedent because the world is different than it was in 1972," Sanger told Insider.

SCOTUS typically upholds precedent — but their tone was different this time, Sanger said

The Court typically upholds prior decisions to maintain a sense of order, Sanger said. When precedent is ignored, Sanger said, it can fuel doubt or distrust in the legal system.

That tradition played a role in 1992, when the Supreme Court heard Planned Parenthood of Southeastern Pennsylvania v. Casey, which also focused on abortion rights. The Supreme Court upheld Roe v. Wade, saying the proposed Pennsylvania law, which required married women notify their husbands of their abortion plans, was unconstitutional.

During the Dobbs v. Jackson Women's Health hearing, however, the justices said women have gained greater adoption and birth control access since the 1992 decision, suggesting Roe v. Wade is no longer relevant, according to Sanger.

"I think there's a greater likelihood than ever before that it could be overturned," Sanger said.

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