AMERICANS ON BOTH sides of the abortion debate have been here before. In 1992 defenders of the right to abortion braced themselves for the worst when, in Planned Parenthood v Casey, it seemed on the cusp of erasure. Then, to the dismay of abortion opponents, five justices forged a coalition to preserve Roe v Wade, the ruling in 1973 that established abortion rights. This time, in Dobbs v Jackson Women’s Health Organisation, a surprise ending seems unlikely. In oral arguments on December 1st, the most conservative Supreme Court in a century sounded intent on rewriting—and probably abandoning—a half-century-old constitutional liberty.
Dobbs involves a ban by Mississippi on most abortions after 15 weeks of pregnancy. (There are exceptions in cases of danger to a woman’s health or severe fetal abnormality, but not in cases of rape or incest.) The law, adopted in 2018, was blocked in lower courts as a violation of the protection Roe and Casey provide to abortion before fetal viability (about 24 weeks). When Mississippi petitioned the Supreme Court in June 2020, it made the relatively modest point that some pre-viability bans may be constitutional. But when the state filed papers a year later—after the conservative Amy Coney Barrett replaced the late, liberal Ruth Bader Ginsburg—its tune had changed. Nothing less than overruling Roe and Casey would do.
Several justices have been open about their scepticism of Roe. Justice Clarence Thomas has declared it “grievously wrong”. In the 1980s, before he wore a judicial robe, Samuel Alito wrote that “the Constitution does not protect a right to an abortion.” So there was no doubt that Mississippi had at least a somewhat receptive audience for its proposition. But this week only one member of the court’s six-justice conservative bloc—Chief Justice John Roberts—seemed interested in finding a way to uphold Mississippi’s law without throwing Roe out.
In his questioning of the lawyers arguing against Mississippi’s law, Julie Rikelman of the Centre for Reproductive Rights and Elizabeth Prelogar, solicitor-general of the United States, Chief Justice Roberts suggested that the viability line may not be essential to Roe or Casey. The right to abortion, he implied, could endure without it. Neither lawyer accepted this. The lawyer for Mississippi, Scott Stewart, was of no help to the chief, either. The only means of getting rid of a number of the problems that come with a middle way, he said, is to “overrule full scale”.
Most lawyers and justices alike seemed resigned to this all-or-nothing proposition. But they struck different tones. Justice Brett Kavanaugh recited a string of cases in which the court overruled precedent. Since the constitution is “neither pro-life nor pro-choice”, abortion law should be returned to the states or perhaps Congress to resolve. There may be “different answers in Mississippi and New York”, but that’s how democracy works. Ms Prelogar’s reply: no, “this is a fundamental right of women, and the nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honour them or not.”
Justice Barrett asked both Ms Rikelman and Ms Prelogar about “safe-haven laws”—statutes in most states that allow women to drop off unwanted babies without being charged with child abandonment. Don’t these laws take pressure off women who worry that having a child will disrupt their lives or careers? There may still be a burden on “bodily autonomy” that comes with a state requirement to bring a fetus to term, she acknowledged, but this is also true “in other contexts, like vaccines”.
The impact of curtailing or renouncing Roe on American women, one-quarter of whom get an abortion in their lifetime, received scarce attention from the conservative justices. The lawyers did press the matter. Ms Rikelman said Mississippi’s law “would particularly hurt women with a major health or life change during the course of a pregnancy, poor women, who are twice as likely to be delayed in accessing care, and young people”. Justices Elena Kagan and Sonia Sotomayor amplified some of these points. Abortion “is part of the fabric of women’s existence in this country”, Justice Kagan said.
The justices were more keen to assess what damage might come to the court were it to walk away from Roe when it delivers its verdict next summer. Justice Stephen Breyer worried that observers would say, “you’re just political” if the court were to overrule Roe. Before taking such a step, he added, “you better be damn sure” the typical standards for overruling a decision “are really there in spades, double, triple, quadruple”. Justice Sotomayor, in what sounded like a cri de coeur rather than an attempt to win over justices to her right, asked: “Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” ■
This article appeared in the United States section of the print edition under the headline "Roe’s last stand"
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