Reviews | Roe’s end is coming, and it’s coming soon
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Having spent my career studying the history of abortion, I thought I knew what to expect as I listened to Wednesday’s oral arguments in the Supreme Court abortion case, Dobbs v. Jackson Women’s Health Organization. It was clear that big changes were going to be made to US abortion law no matter what. The Mississippi law at issue prohibits abortion after 15 weeks of pregnancy, although Roe v. Wade and Planned Parenthood v. Casey recognize the right to choose abortion much later in the pregnancy. So if the court sides with the Mississippi in this case – as you would generally expect – then US abortion rights will be fundamentally compromised.
The only real question is How? ‘Or’ What judges will rationalize their decision to side with the Mississippi. And on this front, I fear I was wrong.
There are two likely scenarios as to how this decision might play out: Judges might reject the so-called sustainability standard, which is the foundation of abortion law today. (Viability is the point at which a fetus can survive outside the womb, or around 23 weeks of pregnancy.)
After hearing the arguments, I now think the judges will completely overturn Roe v. Wade when their decision is rendered next year.
Until this morning, I thought the second route was too dangerous for a Supreme Court with plummeting polls. Many Americans believe that the Supreme Court, an institution that relies on respect and soft power for its legitimacy, is a partisan institution. Meanwhile, 2022 is an election year. And much of the confirmation hearings for Justices Amy Coney Barrett and Brett Kavanaugh centered on their respect for precedent..
I thought the court would eventually overturn Roe – several of the judges were handpicked by former President Donald Trump to do just that – but before Dobbs’ arguments, I didn’t think they would do it so quickly. I thought the judges would take the time to soften the blow, make their case to the American people while reviewing abortion rights, and defuse arguments that judges are just partisans in robes.
What I heard on Wednesday morning was not a tribunal in which a majority feared negative reactions, but a tribunal ready for revolutionary change. (The justice who expressed the most concern about the backlash was Sonia Sotomayor, the most vocal abortion rights supporter, who appeared poised to write a searing dissent.)
This does not mean that the Conservatives on the ground will necessarily be unanimous. Chief Justice John Roberts seemed to want to avoid overturning Roe altogether. And Judge Barrett’s position has not always been easy to assess – it is perhaps the most conservative vote to be won. But for most of the arguments, Judge Barrett seemed poised to overthrow Roe. For example, she repeatedly suggested that pregnant women did not need to have an abortion because they could simply put their children up for adoption.
It was Justice Kavanaugh’s comments that alarmed me the most on Wednesday. He appears to have subscribed to the idea that the Constitution is neutral on abortion, the suggestion being that this would be both better for the legitimacy of the court and would be the only principled interpretation of the Constitution. “This tribunal must be scrupulously neutral on the issue of abortion, neither pro-choice nor pro-life,” he said. The court once described fairness in the abortion debate as balancing the state’s interest in protecting fetal life and pregnant women’s interest in autonomy and equality. Now Judge Kavanaugh appeared to suggest on Wednesday that fairness means reversing Roe.
The other judges behaved more or less as I expected. Judge Clarence Thomas asked questions that assumed the state had the power to punish women for their behavior during pregnancy. Judge Neil Gorsuch has repeatedly suggested that there is no way Mississippi can win unless Roe was gone. Judge Samuel Alito suggested that at the time of the passage of the 14th Amendment, most states did not consider abortion a protected right – meaning, it seems, that the right to abortion was not rooted in American history.
The message of Wednesday’s arguments was clear: there will be a day when there will no longer be the right to choose abortion in the United States, and it is coming soon.
Mary Ziegler, professor of law at Florida State University, is the author of “Abortion and the Law in America: Roe v. Wade to the Present ”.
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