Give this to the Supreme Court: It did not leave us in suspense. During oral arguments on Wednesday in Dobbs v. Jackson Women’s Health Organization, five Republican-appointed justices made it abundantly clear that they are prepared to abolish the constitutional right to abortion established nearly 50 years ago in Roe v. Wade. Perhaps the most surprising aspect of the morning was how little Justices Brett Kavanaugh and Amy Coney Barrett concealed their desire to overrule Roe. While Chief Justice John Roberts fruitlessly sought out a compromise, Kavanaugh and Barrett showed their cards: Both justices believe the court has an obligation to let states (or Congress) decide the abortion question. Neither showed any appetite for incremental steps or half-measures. They are eager to greenlight complete bans on all forms of abortion at every stage of pregnancy. And they are ready to do it now.
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Dobbs is a challenge to Mississippi’s 15-week abortion ban, and it thus presented the 6–3 conservative majority with a possible middle ground. In Roe—and then again in 1992’s Planned Parenthood v. Casey—the court established a bright-line rule: States may not outlaw abortion before fetal viability, which occurs around 24 weeks. The majority could have used Dobbs to move that line back to 15 weeks, or perhaps earlier, while preserving a right to abortion at early stages of pregnancy. Roberts expressed interest in this possibility early in Wednesday’s arguments, then brought it up again and again. He suggested that the viability rule was arbitrary, the result of personal negotiations between past justices rather than a defensible rule of law. And he floated the prospect of replacing that rule with a more flexible standard that would uphold Mississippi’s ban without eradicating all constitutional protections for abortion.
But Roberts had no takers. This fact became clear when Kavanaugh asked Mississippi Solicitor General Scott Stewart an absurd question: “To be clear, you’re not arguing that the court somehow has the authority to itself prohibit abortion?” Of course, no party asked SCOTUS to ban abortion, and few seriously claim that the Constitution disallows abortion. Asking such a ridiculous question allowed Kavanaugh to frame overruling Roe as the true compromise in a comment aimed at the public rather than anyone in the courtroom. “The Constitution’s neither pro-life or pro-choice on the question of abortion,” he said, “but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.” He added that if Roe goes, some states “would continue to freely allow abortion.” (At points, Kavanaugh did not even pretend to frame these thoughts as a question rather than a comment.)
Kavanaugh continued this strategy—pretend to ask a question, then announce his own views—throughout the morning. He complained to Julie Rikelman, attorney for abortion providers, that the court has been forced “to pick sides on the most contentious social debate in American life.” Worse, it has been forced “to do so in a situation” where, according to “the other side,” the Constitution is “neutral.” And so, he concluded, the court should not “pick sides” but rather remain “scrupulously neutral on the question of abortion, neither pro-choice nor pro-life.”
In case Kavanaugh’s position wasn’t clear enough, he later suggested that the court should not hesitate to overrule Roe despite its status as settled precedent for nearly half a century. Why? Some of the most “important” and “consequential” cases in the Supreme Court’s history overruled precedent, including Brown v. Board of Education.
“If we think that the prior precedents are seriously wrong,” Kavanaugh asked, “why then doesn’t the history of this court’s practice … tell us that the right answer is actually a return to the position of neutrality?” Put differently, reversing Roe would not harm the court or the country; it would be celebrated as a victory for the democratic process. As he told Solicitor General Elizabeth Prelogar: “There will be different answers in Mississippi and New York, different answers in Alabama and California, because there are two different interests at stake”—fetal life and reproductive freedom—“and the people in those states might value those interests somewhat differently. Why is that not the right answer?”
Barrett was equally transparent about her hostility toward Roe. She repeatedly pointed to “safe haven” laws in all 50 states that allow women to relinquish parental rights over unwanted children shortly after birth. “It seems to me, seen in that light, both Roe and Casey emphasized the burdens of parenting,” she said. Rikelman’s arguments focus on the way that “forced motherhood would hinder women’s access to the workplace and to equal opportunities,” Barrett noted. So “why don’t the safe haven laws take care of that problem?” she asked.
Rikelman replied by pointing out that pregnancy is its own burden, and a relatively dangerous one. “It’s 75 times more dangerous to give birth in Mississippi,” she noted, “than it is to have a pre-viability abortion.” But Barrett brushed her off. “Actually, as I read Roe and Casey, they don’t talk very much about adoption. It’s a passing reference that means out of the obligations of parenthood.” Here, the justice took direct aim at Casey, the 1992 decision that reaffirmed Roe while injecting an equality principle into the right to abortion by explaining that the burdens of parenthood diminished women’s personal and professional opportunities. She suggested that this concern has been obviated by “safe haven laws,” and more broadly by the expansion of adoption in the U.S., rendering Casey’s reasoning obsolete—and its holding ripe for reversal.
With these questions from Kavanaugh and Barrett, we can already see the eventual opinion—likely to come down in June—shaping up. (Justices Clarence Thomas, Sam Alito, and Neil Gorsuch are surefire votes against Roe.) The court will hold that advancements in the law of adoption and relinquishment protect women’s equal participation in the nation’s social and economic life after childbirth. It will assert that these developments erode the value of Roe and Casey as precedents. It will then declare that those decisions were egregiously wrong, because the Constitution is “neutral” on abortion. And it will frame this outcome as a triumph of democracy and a fair compromise because the court did not mandate abortion bans, but simply permitted them. Within six months of the decision, experts predict that roughly half the states will impose complete or near-total bans on abortion. And if Republicans win a trifecta in 2024, they may pass a nationwide ban.
Pro-choice advocates desperate for a glimmer of hope can cling to Roberts’ quest for a middle ground—a decision protecting abortion until 15 or 12 weeks instead of 24. There is a very slim chance that the chief justice might pick off Kavanaugh or Barrett for a narrower opinion that safeguards early abortions, at least until the next case comes around. But it’s hard to see how Roberts could pull off such a feat. Both justices appear impatient to resolve this dispute now. Neither seemed remotely concerned about public backlash or political consequences. They sound more than ready to pull the trigger.
At the outset of arguments, Justice Sonia Sotomayor observed that the sponsors of Mississippi’s ban said they introduced it because “we have new justices” who seemed poised to overrule Roe. She asked Stewart bluntly: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
We will soon find out.
