At the Supreme Court, the bell tolls for Roe v. Wade

At the Supreme Court, the bell tolls for Roe v. Wade

By Paul Waldman

Columnist

Today at 2:17 p.m. EST

The Supreme Court heard oral arguments on Wednesday in Dobbs v. Jackson Women’s Health Organization, the case of a Mississippi law banning nearly all abortions 15 weeks after a woman’s last menstrual period. Though a decision likely won’t be handed down until the end of the court’s term next summer, a great deal about the future of abortion rights is coming into focus.

Here’s what we learned from the oral arguments:

All six conservative justices are hostile, to varying degrees, to both abortion rights themselves and to the principles set out in the two cases that govern abortion law in //the United States, Roe v. Wade and Planned Parenthood v. Casey.

Chief Justice John G. Roberts Jr. seemed to be looking for some way to curtail those rights without saying that Roe has been overturned outright.

Nothing the other five conservatives said suggested that they aren’t ready to overturn Roe.

While there were revealing moments throughout the arguments, to see where this is headed let’s focus on three justices: Roberts, Brett M. Kavanaugh and Amy Coney Barrett.

We know that the three liberals on the court want to leave Roe and Casey in place. And we know with almost no doubt that Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch will vote to overturn those rulings.

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The other three had seemed to be at least somewhat in question. But after these oral arguments, perhaps not.

During oral arguments on Dec. 1, Justice Brett M. Kavanaugh argued that the “other side” thinks the court should leave abortion rights to each state. (The Washington Post)

Let’s begin with the chief justice. Roberts repeatedly seemed to search for a way to uphold the Mississippi law — which would discard Roe’s insistence that abortion not be banned before fetal viability, which generally occurs at around 22 to 24 weeks — while still claiming that, in some sense, abortion rights would remain intact.

Mississippi’s 15-week ban is “not a dramatic departure from viability,” he said, adding, “Viability, it seems to me, doesn’t have anything to do with choice. If it really is an issue about choice, why is 15 weeks not enough time?”

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We don’t have to go into the reasons why in many cases it isn’t enough time; the point is that Roberts looked comfortable with ending Roe’s viability standard. But what may be most important is that none of the other conservatives took up his idea of ditching the viability standard while saying the fundamental right was intact — because they clearly want to go farther.

Next, let’s consider Barrett. Like the other conservatives, she insisted during her confirmation hearings that, despite her personal feelings, she would be objective on abortion. But in one critical exchange, she asked Julie Rikelman of the Center for Reproductive Rights why forcing a woman to carry a pregnancy to term and then put the baby up for adoption isn’t a sufficient protection of women’s autonomy.

“Why don’t the safe haven laws,” which allow women to quickly renounce their parental rights, “take care of that problem?” Barrett asked. “There is without question an infringement on bodily autonomy, which we have in other contexts, like vaccines,” she said. “However, it doesn’t seem to me to follow that pregnancy and parenthood are all part of the same burden.”

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In other words, as long as the woman can put the baby up for adoption, she hasn’t been burdened too heavily by being forced against her will to carry a pregnancy to term — it’s just like having to get a vaccine!

The answer, as Rikelman noted, is that “pregnancy itself is unique. It imposes unique physical demands and risks on women and, in fact, has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work.” But Barrett was unconvinced.

Which brings us, finally, to Kavanaugh. He attempted to build a case for overturning Roe as the moderate approach for the court to take, since doing so would allow states to outlaw abortion without mandating that they do so.

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“As I understand it, you’re arguing that the Constitution is silent and therefore neutral on the question of abortion,” he asked the Mississippi solicitor general, going on to note that if Mississippi prevailed, many states would still allow abortion.

Then later, when questioning Rikelman, Kavanaugh returned to the idea. “The Constitution is neither pro-choice nor pro-life on the question of abortion,” he said, by way of summarizing arguments made against her position. He characterized these arguments as saying the court should be “scrupulously neutral” and “return to a position on neutrality on that contentious social issue rather than continuing to pick sides on that issue.”

Kavanaugh’s pretension to be stating someone else’s argument didn’t convince many watchers that this wasn’t, in fact, his own opinion. And this opinion reaches the same outcome as the more aggressive Thomas, Alito and Gorsuch while couching it in terms of neutrality and judicial restraint. To bring the point home, Kavanaugh ran through numerous important cases in the court’s history that were overturned, stare decisis or not.

All of which suggests there are at least five votes to gut or overturn Roe, and perhaps even six.

Oral arguments aren’t always a perfect guide to where the justices will come down. But if there’s anyone out there who still thinks women’s constitutional right to reproductive freedom will exist a year from now, they don’t have much company.