Wednesday's Supreme Court oral arguments in Dobbs v. Jackson Women's Health Organization makes it very clear that there are five votes to overturn Roe v. Wade and end access to safe abortion for half of American women.
Midway through arguments in a case that could end with the Supreme Court abolishing the constitutional right to an abortion, Justice Sonia Sotomayor asked a pointed question about the Court’s future: “Will this institution survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts?
There are early signs Sotomayor is correct that the public is turning against the Court as the Court turns against Roe v. Wade. But during Wednesday’s oral arguments in Dobbs v. Jackson Women’s Health Organization, all six of the Court’s Republican appointees appeared eager to push ahead anyway and overrule at least some key parts of the Court’s prior decisions protecting abortion.
The justices were asked to consider a Mississippi law that prohibits nearly all abortions after 15 weeks of pregnancy, a law that violates the Court’s decision in Planned Parenthood v. Casey (1992) that pregnant people have a right to terminate their pregnancy up until the point when the fetus is “viable,” meaning it can live outside the womb. A majority of the Court appeared very likely to overrule this part of Casey.
At least four justices seemed inclined to go even further, eliminating the right to an abortion altogether. And though Justice Amy Coney Barrett played her cards a little closer to her chest than her colleagues, it seems more likely than not that she will join them. In other words, there could be a majority for overturning Roe.
And even if the Court does not explicitly overrule Roe, it could easily announce a new legal standard that renders Roe an empty husk. A decision like that might leave Roe nominally alive, but that would also leave states free to restrict access to abortions to the point they’re nonexistent in the state, or come up with other creative ways to effectively ban them.
It is still possible the Court will surprise the myriad of legal analysts predicting the end of a constitutional right to an abortion. In 1992, when the Court heard Casey, even Justice Harry Blackmun, the author of Roe, expected his landmark opinion to be overruled. Instead, Casey weakened, but didn’t overrule, Roe.
But after Wednesday’s oral arguments, no one should bet Roe will receive another stay of execution. The two political parties are too well-sorted on questions of abortion rights, the Republican Party has grown too sophisticated in picking judges who will hew to the GOP’s policy preferences, and a majority of the sitting justices were exceedingly skeptical of Roe at Wednesday’s argument.
There is now an almost certain chance that by this time next year, the right to an abortion will depend entirely on the state you live in, and for the majority of women outside of New England and the West Coast, it will not only be illegal to get an abortion in those states, but to cross state lines to get an abortion. If that's not made explicit, the next GOP-controlled Congress and President will outlaw it nationally.
Depending on the reasoning behind the death of Roe, a lot of other rights now hang in the balance, not to mention the looming Damoclean blade of the end of most federal regulatory agencies. It would be a fundamental change in America.
In the past, Kavanaugh has sometimes pushed for more incremental attacks on Roe. In June Medical Services v. Gee (2019), for example, he argued in favor of placing complicated procedural barriers in the way of abortion plaintiffs that would make it difficult for them to bring their cases to federal court or to receive a meaningful remedy.
But on Wednesday, Kavanaugh seemed no less eager to overrule Roe than Thomas, Alito, or Gorsuch. At one point, Kavanaugh rattled off a long list of landmark — and largely celebrated — Supreme Court decisions, including its school integration decision in Brown v. Board of Education (1954), its first one person/one vote decision in Baker v. Carr (1962), and its marriage equality decision in Obergefell v. Hodges (2015), which all overruled previous decisions.
The clear implication was that if the Court could overrule precedent in those cases, why can’t it overrule Roe?
That leaves Barrett, who often implies at oral argument that she might take a more centrist approach than her most conservative colleagues, but who also votes with the Court’s right flank much more often than not. Though Barrett’s questions were less revealing than Kavanaugh’s, they left little doubt that she disagrees with essential parts of Roe and Casey.
Among other things, Barrett repeatedly brought up so-called “safe haven” laws, which allow someone who recently gave birth to immediately give up their child for adoption (Barrett herself is the adoptive mother of two children). “Both Roe and Casey emphasized the burdens of parenting,” she noted, before asking why safe haven laws don’t “take care of that problem?”
In one particularly remarkable moment, Barrett appeared to argue that being forced to carry and birth a child is no big deal. “It doesn’t seem to me to follow that pregnancy and parenthood are all part of the same burden,” she said. “It seems to me that the choice, more focused, would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more” before terminating their parental rights after giving birth.
Barrett, in other words, appeared quite determined to erase Casey’s viability rule. And, while she was less explicit about whether she would eliminate Casey’s undue burden standard, the tone of her questioning was extremely dismissive of both Roe and Casey.
So the right to an abortion is in deep trouble. At the least, the Court appears very likely to overrule Casey’s viability standard — and there’s a good chance it will go all the way to overruling Roe entirely.
After that, well, here there be dragons. We're not about to turn back the clock, we're about to outlaw the last 70 years of modernity.
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