Even though no other justices on the Supreme Court would likely agree with it, Chief Justice John Roberts brought an idea to Wednesday’s arguments about abortion that a slim majority of the court might eventually accept.
At the end of the two-hour session, Roberts suggested the Supreme Court reverse a significant portion of Roe but retain some constitutional protection for abortion. When a fetus is capable of surviving outside of the womb at around 23 weeks, Roberts would abolish the existing protection for a woman’s abortion decision. It was made clear that while he would allow states to ban abortion after 15 weeks of pregnancy, as Mississippi has done in its appeal to the Supreme Court, he would not go so far as a complete ban on the procedure.
In order for the chief’s plan to succeed, one of the other five conservatives would have to join him. Otherwise, it appears that the newly reconstituted Supreme Court is prepared to completely overturn the Roe landmark. Nearly fifty years of constitutional protection could be overturned in one way or another by the court.
The three Trump appointees to Roberts’ right on the court have made it clear over the years that they oppose the right to an abortion. Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have all previously criticized decisions that allow women to terminate pregnancies. Trump has vowed to appoint justices who will overturn Roe.
In spite of his long record of opposing abortion rights, Chief Justice Roberts was uninterested in deviating from the topic the justices had agreed to discuss: Without violating the Constitution, can states ban abortions prior to the fetus’ viability?
Women’s reproductive rights in the United States are now in an entirely new era, as demonstrated by the lively Q&A session. A direct challenge to Roe hasn’t come before the court since 1992, and the current bench lacks the moderate Republican nominees who steered the 1992 compromise decision that endorsed Roe’s essential holding that gave women the right to end a pregnancy prior to fetal viability.
As a result of Covid-19 restrictions, the courtroom setting was spare and solemn, in stark contrast to the cacophony of hundreds of protesters outside. Inside the courtroom, a few dozen people (mostly journalists and law clerks) sat on red upholstered benches in rows of three rows apart in high-quality masks.
With the exception of Sonia Sotomayor, the justices were all unmasked and their faces betrayed the weight of the moment. Their questions cut to the heart of important issues such as the autonomy of a woman, the value of a fetus, and the institution’s commitment to precedent.
There were two Supreme Court decisions that used viability to determine when the state’s interest in protecting the fetus outweighed the woman’s ability to terminate a pregnancy in 1973 and 1992, respectively.
RELATED: Roe has been around for nearly half a century. How outlandish would it be if it were to fall over?
Although Roberts argued repeatedly that the viability line was arbitrary and irrelevant to Roe and Casey’s core holdings, lawyers challenging the state of Mississippi’s law refuted his assertions. Roberts, on the other hand, hinted at a willingness to allow women to terminate pregnancies early on.
Stephen Breyer, Sotomayor, and Elena Kagan, three justices to his left, want to preserve the full breadth of Roe v. Wade and Planned Parenthood v. Casey.. According to them, the Supreme Court’s usual adherence to precedent would be jeopardized if it reversed any of these rulings, which women have relied on for more than 50 years.
However, the outcome of this pivotal debate is unlikely to be determined by the votes of those three liberals — who represent a small minority.
Is justice going to be served?
Gorsuch and Kavanaugh, two of Trump’s picks for the Supreme Court, have shown a willingness to overturn Roe v. Wade. By Barrett’s questions, however, she seemed less concerned.
If the viability cutoff line were dissolved, Gorsuch questioned whether the justices could ever come up with a new “workable standard.”
Related: Brett Kavanaugh, who emphasized precedent during his confirmation battle, now downplays it as he considers overturning Roe.
Clarence Thomas and Samuel Alito, the court’s other conservatives, argued vehemently against Roe’s validity. If Alito votes to uphold the 15-week Mississippi ban, he may also vote to postpone a decision on Roe.
In this case, it appeared that Roberts would join with the three liberals (who would still disapprove of upholding the Mississippi law) and a fifth vote would come from Alito or one of Trump’s three appointees, if any abortion rights were to be established.
Roberts was an opponent of Roe v. Wade during the administrations of both Ronald Reagan and George H.W. Bush, and he even pleaded with the Supreme Court to overturn the decision. Then again, since taking the bench, his approach has been a little more cautious.
However, in Louisiana’s 2020 legislative debate he cast an opposing vote to overturn an abortion restriction on doctors who perform abortions, citing a precedent from 2016 that had previously been rejected by him.
He has tried to keep the bench from veering too far to the right as chief and as a justice in the middle of the ideological spectrum.
Previously, he has expressed concerns about public perceptions of the court and the risk of political taint.
On Wednesday, Sotomayor slammed that possibility in a scathing manner. Using comments made by Mississippi abortion ban supporters, she argued that the court’s new justices and established conservatism made it likely that the court would embrace the ban.
“I don’t see how this institution can survive the stench that this creates in the public perception that the Constitution and its reading are just political acts,” she said.
In Dobbs v. Jackson, read the transcript of Supreme Court oral arguments.
Justices Breyer and Kagan, both liberals, emphasized the court’s usual adherence to precedent, particularly when it seriously reconsidered Roe’s validity and upheld it in 1992.
If you think a case is wrong, “usually there has to be a justification, a strong justification,” said Kagan. That people still believe it is right or wrong for the same reasons they have always believed it was right or wrong for when considering this case, is what strikes me the most, when looking at it from the perspective of Roe and Casey.
Taking a stand on the other side of the ideological divide, Kavanaugh has expressed an interest in devolving the issue to state legislators, which would eliminate any constitutional right to abortion.
“The Constitution is neither pro-life nor pro-choice on the question of abortion, but leaves the issue to the people of the states or perhaps Congress to resolve in the democratic process,” he stated before asking a question.
Is it feasible to have a lower legal viability standard?
Abortion’s right to privacy is protected by the 14th Amendment’s due process clause, which is why the Supreme Court first established the right to abortion in 1973.
Even if the Constitution does not specifically mention a right to privacy, the justices in Roe acknowledged this fact and said that “the Court has recognized that a right of personal privacy, or a guarantee for certain areas or zones of privateness, does exist under the Constitution.”
Women’s right to terminate pregnancy was included in the scope of the Roe court’s ruling, which stated that the right extends beyond a woman’s decision to marry, use contraception or raise children.
He asked Julie Rikelman, a representative of the Jackson Women’s Health Organization, if the position he was considering was feasible.
What if you believe that women should be able to terminate their pregnancies at any point in the pregnancy? If so, why would 15 weeks be an inappropriate line?” Chief Justice John Roberts asked the panel.
Roberts added that he couldn’t see how the viability cutoff had “anything to do” with the issue of “freedom of expression.”
Those in “the most challenging circumstances” in their pregnancies would not be able to get the medical care they need, Rikelman argued. It would be “less principled and less workable than viability” to use an alternative standard, she said.
After six weeks in Texas, which has an abortion ban, she predicted that other states would follow suit. In order to evaluate the merits of the law’s procedures, the Supreme Court has allowed that prohibition to remain.
An attempt was made to balance the interests of a pregnant woman with those of the fetus in 1973, and the court stated at the time that viability was a cutoff “Because the fetus is capable of meaningful life outside of the mother’s womb at this point in time. There are both logical and biological justifications for state regulation that protects the life of a fetus once it is viable.”
According to Barrett, what would happen if a woman could not get an abortion but could give a child up for adoption or relinquish her parental rights under state law?
It’s not clear why such options don’t “solve” the issue. Barrett inquired about it. “As far as I can tell, this method narrows down the scope of the problem. When it comes to vaccines, there is no doubt that we have a violation of our bodily autonomy. Pregnancy and parenthood, on the other hand, don’t seem to share the same burden to me.”
Abortion rights include “bodily integrity,” “decisional autonomy,” and “specific decisions relating to childbearing, marriage, and procreation,” according to Rikelman’s definition.
Women’s lives are affected in many ways by pregnancy, according to Rikelman: “on their ability to care for other children and other family members, on their ability to work,” he said.
Alito tried to question the viability cutoff’s rationale, but he was unable to do so. As he has done in the past, he may be open to a complete reversal of the Roe decision.
On Wednesday, however, he appeared to be struggling to come up with an answer that wasn’t as clear-cut as those on the far right or the far left wanted, either in favor of or against Roe.
Is “the only real option we have” the option of “overruling Roe and Casey in their entirety?” Alito asked at one point. Abortion rights as they currently exist would still be halted if any other justices joined Roberts in a middle-ground position.