Lawyers and Justices on both sides—with the possible exception of John Roberts—appeared to be past pretending that the Mississippi case is about anything less.
Protesters demonstrate in front of the U.S. Supreme Court, which on Tuesday heard oral arguments on a case pertaining to a Mississippi abortion law. Photograph by Chip Somodevilla / Getty
During the Supreme Court oral arguments on Tuesday in the case of Dobbs v. Jackson Women’s Health Organization, involving a Mississippi ban on most abortions after fifteen weeks, Justice Brett Kavanaugh began to rhapsodize about the history-making power the Court has. He began listing major cases—“there’s a string of them”—that, he said, had overturned earlier precedents: Brown v. Board of Education; Baker v. Carr; West Coast Hotel v. Parrish; Miranda v. Arizona, Lawrence v. Texas; Mapp v. Ohio; Gideon v. Wainwright; Obergefell v. Hodges. “And I could go on, and those are some of the most consequential and important in the Court’s history,” he said. If the Court, in the Dobbs case, thinks “that the prior precedents are seriously wrong,” can’t it pursue “the right answer” instead? If it never overturned precedents, he said, “the country would be a much different place.”
The precedents that Kavanaugh is talking about tossing aside in this instance are Roe v. Wade, decided in 1973, and Planned Parenthood v. Casey, decided in 1992—the cases that enshrined reproductive rights and access to abortion. He and other Justices, more likely than not a majority, based on their questions in the oral arguments, appear ready to add Dobbs to the list of landmarks by using it to explicitly overturn Roe and Casey. The fallback would be a decision that leaves those rulings in place as empty shells, deprived of most of their practical effect. For years, many states have chipped away at reproductive rights with regulations and restrictions that, for example, left Jackson Women’s Health as the only provider of abortions in Mississippi. Dobbs is different. In a few months’ time, when this decision is likely to be handed down, the right to an abortion as Americans have known it for half a century will, it appears, no longer exist.
Indeed, the lawyers and Justices on both sides—with the possible exception of Chief Justice John Roberts—appeared to be past pretending that the case is about anything less. The Mississippi law’s fifteen-week prohibition is several weeks before the point of viability, or when a fetus is able to survive outside the womb, even with the latest medical help. Jackson Women’s Health immediately challenged the law and won the first rounds, in lower courts, with good reason. Between them, Roe and Casey established viability as the point before which a woman’s right to end her pregnancy is supposed to be secure, with no “undue burden” placed upon her exercise of that right—that is, without so many hoops and barriers that she cannot really obtain one. (This right is just as critical, of course, for trans and gender-nonconforming people who can become pregnant.) This means that, under existing precedents, the Mississippi law is unconstitutional on its face.
The Court thus put Roe on the docket when it took the case this spring, saying that it would consider whether states could impose pre-viability restrictions. That alone is a broad mandate; without viability, the standard for drawing the line becomes unclear, less tethered to a principle, and possibly nonexistent. Mississippi, for example, has another law, on hold pending litigation, that would ban abortions after six weeks, counting from the last menstrual cycle—possibly no more than days after a missed period.
In filings since the Court accepted the case, the implicit has become explicit. Scott Stewart, the Mississippi solicitor general, opened the state’s argument on Tuesday with the words, “Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law.” Almost two hours later, at the end of his rebuttal, he called Roe “an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take innumerable human lives unless and until this Court overrules it. We ask the Court to do so in this case.” In between those statements, Julie Rikelman, the lawyer for Jackson Women’s Health, and Elizabeth Prelogar, the U.S. Solicitor General, did an excellent job of laying out why those precedents do, in fact, have a basis in the Constitution (particularly the Fourteenth Amendment, with its promise of liberty) and in our history and traditions (citing both the control that women in the early Republic widely had to “end a pregnancy before quickening,” under common law, and the way that Roe has been integrated into Americans’ lives in the past fifty years, including in the movement for women’s rights at home and in the workplace, forming part of our history now). The liberal Justices—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—spoke with real passion, too, particularly Sotomayor. But there are only three of them, and six conservatives.
It was telling that Kavanaugh and the other conservative Justices focussed not on whether to overturn Roe and Casey but on what would be left if they did. Amy Coney Barrett prompted Stewart to say that certain other non-abortion precedents wouldn’t be disturbed if Mississippi won—a questionable assertion, given the role of Roe in articulating privacy rights. Kavanaugh asked him to clarify that Mississippi was not asking the Court to “prohibit” abortion but arguing that “the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.” Stewart agreed. In that case, Kavanaugh continued, “If you were to prevail, the states, a majority of states or states still could or—and presumably would—continue to freely allow abortion.” The message was that middle-class women in states such as New York and California needn’t trouble themselves—they could just look away. That is nonsense. There is a difference between living with a right and relying on the indulgence of a state legislature. And it is an insult to people in every state to say that they needn’t care about the liberty and well-being of people in another state who might be deprived of choice or pushed toward the sort of unsafe, illegal abortions that often cost women of earlier generations their lives. It is also notable that twenty-four states, including Arizona, Florida, Indiana, Ohio, and Texas, jointly submitted an amicus-curiae brief supporting Mississippi’s position and asking the Court to overturn Roe.
It is, again, possible that the Court will leave Roe and Casey in place, and merely render their protections mostly meaningless—a forlorn hope, but one that Roberts concentrated on. At one point, he asked Prelogar, the Solicitor General, why people who had “planned their lives according to a twenty-four or whatever week limit” couldn’t simply be a little quicker on their feet and adjust to “a fifteen-week limit.” Prelogar replied by noting that Mississippi wasn’t asking for “a clear fifteen-week line”; instead, “they’re asking the Court to reverse the liberty interest altogether or leave it up in the air. And if that were to happen, then immediately states with six-week bans, eight-week bans, ten-week bans, and so on, would seek to enforce those.”
“Well, that may be what they’re asking for,” Roberts said. “But the thing that is at issue before us today is fifteen weeks.” That remark may have been a sign of his impatience; it certainly spoke to his isolation. Neil Gorsuch, by contrast, seemed to be using his questions to support the idea that, if viability were abandoned, there wouldn’t be a clear alternative standard. Stewart had made that argument in saying that, rather than live with the resulting lack of clarity, the Court should “just go all the way and overrule Roe and Casey.” Clarence Thomas had been in the minority on Casey the first time around, and has made no secret of his continued opposition. Samuel Alito told Rikelman, the lawyer for the clinic, that he interpreted her brief to mean that “the only real options we have are to reaffirm Roe and Casey as they stand or to overrule them in their entirety.” There are in fact other options, such as setting a standard that is not strictly viability but still offers protections in a meaningful way, but there were few signs that the conservatives, other than Roberts, were seeing their way to anything of the kind.
The issue of planning one’s life was connected to the question of what sort of precedent Roe and Casey, seen together, represent. The Court does overturn past decisions, but it also takes respect for stare decisis—letting what has been decided stand—into account, and has recognized that certain of its precedents represent what Roberts at one point called “super stare decisis,” and Breyer a “super case.” These precedents are accorded the highest level of deference, in part because of what is referred to as reliance on them—other Court decisions, assumptions about life choices, freedom to enjoy other rights, and what Kagan called “the fabric of women’s existence in this country.” Breyer used his questions to emphasize the view that Roe falls into this category. And Sotomayor, in a powerful rejoinder to what she called “Justice Kavanaugh’s long litany of cases in which we’ve overruled precedent,” spoke to Roe’s place in an ongoing procession, since the end of the Civil War, toward greater liberty. “Of all of the decisions that Justice Kavanaugh listed, all of them invite—virtually, except for maybe one, involved us recognizing and overturning state control over issues that we said belong to individuals.” (The possible exception, West Coast Hotel, involved the Court upholding the minimum wage.) That is, indeed, true of Brown (1954), which ended legalized school segregation; Mapp (1961), Gideon (1963), and Miranda (1966), which protect the rights of people accused of crimes; Lawrence (2003), which decriminalized homosexual relations; and Obergefell (2015), which recognized the right to marriage equality for same-sex couples. It would not be true of Dobbs.
Barrett, in her questioning of Rikelman, offered a glimpse of an alternative America. She had apparently been struck by the mention, in the Mississippi brief, of a proliferation of state “safe haven” laws that make it easier for someone who has given birth to terminate parental rights, including, in many cases, by anonymously leaving a newborn in a safe place. Roe and Casey, and the arguments on behalf of Jackson Women’s Health, Barrett said, note “the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy. Why don’t the safe haven laws take care of that problem?” She acknowledged that there still could be issues with pregnancy itself—“an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines.” (The vaccine reference was not explained further; the Court is expected to hear challenges to vaccine mandates.) It seemed to Barrett that the possibility of adoption “focuses the burden much more narrowly.” In short, her rather breathtaking suggestion was that having a child was not something a woman could claim was a significant imposition if there was somewhere she could just drop the baby off.
Rikelman replied by noting how serious, distinct, and intertwined the experiences of pregnancy, childbirth, and parenthood are. She also reminded Barrett that adoption was an option when Roe was decided, too. The exchange was relevant because one justification for overturning a foundational case would be that the material circumstances surrounding it had substantially changed. That factor raises the possibility that Barrett’s assertion of the game-changing novelty of safe-haven laws is disingenuous rather than delusional.
But the change that has brought Dobbs this far is a different one: Donald Trump got to appoint Barrett, Kavanaugh, and Gorsuch to the Supreme Court. Sotomayor noted that the sponsor of Mississippi’s pending six-week ban “said we’re doing it because we have new Justices on the Supreme Court.” She asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” That is one question. Another might be whether certain Republicans, whose Party has pushed opposition to reproductive rights as a usefully divisive issue, will come to regret what they have wrought. Some who found taking that position easy when lack of access to abortion was an abstraction, because of Roe’s protection, may face different demands from their own voters now. A more pressing question may be whether people who care about reproductive rights are ready to take the fight to legislatures in all fifty states. That is where the future of abortion will most likely be decided, in a world after Roe. The country will be a different place.
Written by Amy Davidson Sorkin for The New Yorker – December 2, 2021