Editor’s Note: Mary Ziegler is a law professor at Florida State University College of Law and author of “Abortion and the Law in America: Roe v. Wade to the Present.” Follow her @maryrziegler. The opinions expressed here are those of the author. View more opinion on CNN.
Heading into Wednesday’s oral argument in Dobbs v. Jackson Women’s Health Organization, there was little doubt that the Supreme Court’s conservative supermajority would be looking to alter the status quo on abortion. The question going into oral argument was how.
Would the Court home in on viability (the ability of a fetus to survive outside the womb) as a dividing line and hold that it was no more constitutionally required than any other line? Or would the Court’s conservative majority hand Mississippi a win by concluding that the Constitution offered no protection of the right to choose abortion?
Before Wednesday, the second path – eliminating abortion rights – seemed harder to imagine simply because generations of Americans have grown up taking abortion rights (and Roe) for granted. To overturn the 1973 decision would be a profound statement about women’s liberty and autonomy – a social and political earthquake that would fundamentally alter the lives of many.
Reversing Roe would encourage anti-abortion lawyers to ask the Court for more – including a decision holding that a fetus is a rights-holding person and that abortion is unconstitutional everywhere in the United States.
A decision eliminating Roe would mean that somewhere between 20 and 25 states would criminalize virtually all abortions, transforming the lives of people across large swathes of the South and Midwest. And overruling Roe would likely cut against popular opinion – well over half of Americans do not want abortion rights eliminated – putting the Court at risk of a backlash that could damage its public standing and jumpstart conversations about court reform.
Prior to Wednesday’s argument, it seemed that the justices might want to avoid bringing on that kind of political fallout, at least immediately. The story of Texas’s SB8 – another law currently under the Court’s review after arguments last month – seemed to suggest as much. That abortion law bans abortion as early as six weeks – around two weeks after someone could plausibly know they are pregnant – and outsourced enforcement to any private citizen, who can sue people who performed abortions or assisted those seeking them.
The Court let SB8 go into effect in September, but then the justices’ popularity took a nosedive. That dip, observed just after the court declined to block SB8, very likely has to do with more than abortion, but many Americans increasingly see the justices as partisan, and they do not like it one bit.
The justices didn’t seem happy about it either. Several took to the microphone to insist that the justices are not, in Amy Coney Barrett’s words, “partisan hacks.” The Court then put SB8 on a fast track and seemed to be taking the abortion issue seriously. That hardly meant that Roe was safe. But to many observers, it suggested that the justices were worried about managing the political consequences of undoing abortion rights.
In the Dobbs case, then, some observers wondered if the Court’s conservative justices wanted to land a blow against abortion rights while minimizing the damage to the Court’s institutional legitimacy. One possible way to do that: say that the viability line did not make sense and stop there.
At Wednesday’s argument, Chief Justice John Roberts seemed to have just that in mind. He seemed to acknowledge that pregnant people relied on the availability of legal abortion but portrayed the viability line as arbitrary. “As far as viability goes,” Roberts said in questioning Solicitor General Elizabeth Prelogar, “I don’t see what that has to do with the question of choice at all.”
Eliminating viability alone would be a huge blow to abortion rights. A decision doing so would embolden conservative states, fuel bans on abortion early in pregnancy, rewrite the rules on abortion law, and create uncertainty about the future of abortion rights. And yet most of the conservative justices seemed to want to go much further.
It might have been no surprise that Justices Clarence Thomas, Samuel Alito and Neil Gorsuch seemed inclined to reverse Roe immediately. Thomas has often written that Roe was wrongly decided. On Wednesday, he pressed both Prelogar and Julie Rikelman, the attorney for Jackson Women’s Health Organization (the state’s lone remaining abortion clinic), about where the right to abortion came from.
Alito expressed skepticism about the way that Roe rooted the right to abortion in the Fourteenth Amendment, questioning whether “any judicial decision” at or shortly after the passage of the amendment in 1868 recognized that “abortion was a right.” Gorsuch suggested that if the Court does dispense with viability, there is no other “intelligible principle” for the justices to follow besides reversing Roe.
The Court’s newest justices, Brett Kavanaugh and Amy Coney Barrett, seemed ready to follow Thomas, Alito, and Gorsuch in reversing Roe. Kavanaugh suggested that the better course might be to declare that the Constitution was neutral on abortion – and that the states could decide for themselves about abortion.
In asking a question of Rikelman, he stated that the Court had “been forced by the position you’re taking … to pick sides on the most contentious social debate in American life.” He suggested that Constitution recognized neither “a right to choose or a right to life” – and that the Court “should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life.”
Kavanaugh’s idea of a compromise seemed quite different from Roberts. Antiabortion attorneys had argued that abortion itself is unconstitutional because the fetus is a rights-holding person under the Constitution. Kavanaugh seemed to want to foreclose that possibility, at least for now. But his middle-ground solution was not to defer precedent but to let roughly half the states to ban abortion.
Amy Coney Barrett, another key vote, took aim at Rikelman’s argument that women relied on abortion to achieve equal citizenship. Mississippi had stressed that if women ever needed abortion, they didn’t anymore. Barrett seemed to feel the same way. She brought up safe haven laws – which allow people to safely (and without penalty) surrender unwanted newborns at designated sites like hospitals and fire stations – as a signal that women need not rely on abortion anymore.
Roe and subsequent cases, she suggested, had focused on how forced parenthood “would hinder women’s access to the workplace and to equal opportunities.” “Why don’t the safe haven laws take care of that problem?” Barrett asked Rikelman in one exchange. She suggested that pregnant people could simply choose adoption and avoid any obstacle to achieving equal citizenship.
If you think that sounds like a Court ready to reverse Roe, you would be right.
A decision reversing Roe would likely be unpopular – polls suggest that Americans support a variety of abortion restrictions but want to preserve Roe. But the Court’s conservative majority has been handpicked (the culmination of a Donald Trump pledge) to resist that kind of political pressure. In 1992, the Court was widely expected to reverse Roe in a decision called Planned Parenthood v. Casey, but when the time came, three Republican nominees, Sandra Day O’Connor, Anthony Kennedy, and David Souter, refused to pull the trigger and voted to save abortion rights.
It seems that there will be no saving Roe this time. The conservative legal movement has perfected its vetting process, grooming judges whose interpretive approach naturally leads to the conclusion that Roe was wrong. Presidents have rejected consensus nominees in favor of justices who excite the base and get voters to the polls. The end result is a Court that sounds ready to reverse Roe immediately, political consequences be damned. And if the Court is no longer worried about political backlash, there is no telling what it will do next.
