Updated at 1:55 p.m. ET on December 2, 2021.
Anyone listening to today’s oral argument on abortion could not miss that something historic was happening. The case, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law that bans abortion at 15 weeks. Such a ban is clearly unconstitutional under current law—Roe v. Wade and its successor case, Planned Parenthood of Southeastern Pennsylvania v. Casey, recognize a right to choose abortion until fetal viability, which is at roughly 24 weeks. To uphold Mississippi’s law, the Supreme Court’s conservative justices have two options: They can ditch the viability line or get rid of Roe altogether.
Today’s oral argument signaled that the Court is poised to reverse Roe outright when it decides Dobbs, probably sometime in June or early July. That would be one of the most significant reversals of Supreme Court precedent in American history. Roe v. Wade has been the law for 50 years. Even Brett Kavanaugh spent much of his confirmation hearing proclaiming his fidelity to precedent. Today, the attorney for Jackson Women's Health Organization, the abortion provider challenging the Mississippi law, leaned hard on the idea that the Court must respect its own precedents—a strategic choice given that the Court’s conservative majority was never going to be sympathetic to the idea of abortion rights.
But the six conservatives did not appear worried about precedent. Chief Justice John Roberts, known for his concern about the Court’s institutional legitimacy, seemed to think that the Court could respect precedent while eliminating the viability line—a boundary that he argued has nothing to do with freedom of choice, which is what Roe protects. Roberts’s suggestion of this compromise approach was not surprising—the Court would not have taken this case if it did not plan to get rid of viability.
What was surprising was that no one but Roberts really seemed interested in the viability compromise.
Neil Gorsuch, who seemed skeptical of the idea that a right to choose abortion exists, repeatedly asked questions suggesting that there is no middle-ground position—the justices should either leave Roe intact or eliminate abortion rights altogether. Samuel Alito took a more historical approach, hinting that there can be no right to abortion, because at the time the relevant part of the Constitution was written, many states had already made abortion a crime. Clarence Thomas suggested that neither the counsel for the abortion providers nor the counsel for the United States could define a right clearly rooted in the nation’s history or tradition.
Kavanaugh and Amy Coney Barrett seemed to be on the same page. Barrett echoed Roberts’s question about viability, but mostly she dwelled on Roe’s flaws. She returned more than once to the question of whether women rely on the availability of legal abortion to achieve equal citizenship. (The Court puts a lot of weight on whether people rely on a specific rule of law when deciding whether to overrule a precedent.) Those challenging Mississippi’s law stressed that getting rid of Roe would have devastating consequences. Barrett was hardly convinced. She raised the example of so-called safe-haven laws, which allow people to surrender unwanted newborns with no legal penalty. An unwanted pregnancy need not burden anyone, she suggested, who could simply put up a child for adoption.
Kavanaugh’s position was even clearer. He argued that the Court might be better off if it allowed the states to resolve the abortion issue themselves—if the Court restored what Kavanaugh described as neutrality, meaning that in his view the Constitution is neither pro-life nor pro-choice and states get to decide. When the challengers raised concerns about the risks women would face if neutrality were restored, the indifference in the room was notable. Barrett conceded that reversing Roe would mean that people would have to face the burdens of pregnancy. Kavanaugh stated sympathetically that abortion is a hard issue.
The clearest big-picture development is that what passes for a compromise on abortion law has changed fundamentally. Roberts thought that the Court would go for superficially preserving Roe while allowing states to ban most (if not all) abortions, but that does not seem to be enough for this Court. Instead, we seem to be headed toward the idea of “compromise” that Kavanaugh hinted at: a Supreme Court that immediately reverses Roe now that its membership has changed, without qualification or apology. That, Kavanaugh suggests, will be the ultimate compromise: a neutral, apolitical Court. Good luck convincing anyone of that.
This article originally misidentified the name of the abortion provider challenging the Mississippi law.