Republican presidents have said for years that they would appoint justices who will overrule Roe. They’ve probably succeeded.
Midway through arguments in a case that could end with the Supreme Court abolishing the constitutional right to an abortion, Justice Sonia Sotomayor asked a pointed question about the Court’s future: “Will this institution survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts?
There are early signs that Sotomayor is correct that the public is turning against the Court as the Court turns against Roe v. Wade. But during Wednesday’s oral argument in Dobbs v. Jackson Women’s Health Organization, all six of the Court’s Republican appointees appeared eager to push ahead anyway and overrule at least some key parts of the Court’s prior decisions protecting abortion.
The justices were asked to consider a Mississippi law that prohibits nearly all abortions after 15 weeks of pregnancy, a law that violates the Court’s decision in Planned Parenthood v. Casey (1992) that pregnant people have a right to terminate their pregnancy up until the point when the fetus is “viable,” meaning it can live outside the womb. A majority of the Court appeared very likely to overrule this part of Casey.
At least four justices seemed inclined to go even further, eliminating the right to an abortion altogether. And though Justice Amy Coney Barrett played her cards a little closer to her chest than her colleagues, it seems more likely than not that she will join them. In other words, there could be a majority for overturning Roe.
And even if the Court does not explicitly overrule Roe, it could easily announce a new legal standard that renders Roe into an empty husk. A decision like that might leave Roe nominally alive, but that would also leave states free to restrict access to abortions to the point they’re nonexistent in the state, or come up with other creative ways to effectively ban them.
It is still possible that the Court will surprise the myriad of legal analysts predicting the end of a constitutional right to an abortion. In 1992, when the Court heard Casey, even Justice Harry Blackmun, the author of Roe, expected his landmark opinion to be overruled. Instead, Casey weakened, but didn’t overrule, Roe.
But after today’s oral argument, no one should bet that Roe will receive another stay of execution. The two political parties are too well-sorted on questions of abortion rights, the Republican Party has grown too sophisticated in picking judges who will hew to the GOP’s policy preferences, and a majority of the sitting justices were exceedingly skeptical of Roe at Wednesday’s argument.
The two issues at stake in Dobbs
Casey laid out a two-part framework governing the right to an abortion. The first part is that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” which occurs around the 24th week of pregnancy.
Casey also held that states may, under certain circumstances, regulate abortion. But such regulations may not impose an “undue burden” on the right to terminate a pregnancy — meaning that states cannot enact a law “if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
The Court initially asked the parties in Dobbs to write briefs on only the first of these two holdings, whether “all pre-viability prohibitions on elective abortions are unconstitutional” — a clear signal that at least some members of the Court want to overrule Casey’s viability holding.
Indeed, all six of the Court’s Republican appointees appeared eager to overrule that holding. That includes Chief Justice John Roberts, the most cautious member of the Court’s conservative majority. As Roberts told Julie Rikelman, one of the lawyers struggling to defend Roe from a hostile Court, “Why is 15 weeks not enough time” for someone to decide whether to terminate their pregnancy?
(It’s worth noting that, while Mississippi styles its law as a 15-week ban, that clock starts to tick on “the first day of the last menstrual period of the pregnant woman.” So, in practice, the law functions more like a 13-week abortion ban.)
But Mississippi wound up going much further in its brief, asking the Court to overrule Roe and Casey altogether. If the Court agrees that Roe should be overruled, it could do so explicitly, or it could reinterpret the “undue burden” standard so that it no longer imposes meaningful limits on abortion regulations.
Roberts largely focused his questions on Casey’s viability line. He appeared less interested in the question whether to overrule Casey’s second holding that abortion regulations are invalid if they impose an undue burden on the right to terminate a pregnancy — at least for now.
But a majority of the Court did not appear to share Roberts’s relatively incrementalist approach. At least four, and most likely five, of the Court’s remaining conservatives seemed ready to toss out Roe and Casey in their entirety.
The Court’s right flank sounded quite emboldened
There’s been a lot of commentary lately arguing that we have a 3-3-3 Supreme Court — meaning that there are three justices on the far right, three on the left, and three somewhere in between. That characterization of the Court is superficially accurate but also somewhat misleading. While it is true that Roberts, Barrett, and Justice Brett Kavanaugh are often more cautious than their three most conservative colleagues, the three justices in the middle are still very far to the right.
The three most conservative justices — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — played their typical role of insisting that the Court should give conservatives everything they are asking for in Dobbs, and without any delay. Thomas, at one point, compared Roe to Lochner v. New York (1905), an infamous decision striking down pro-labor legislation, and which is widely taught in law schools as an example of how judges should never, ever behave.
Similarly, Alito seemed to compare Roe to Plessy v. Ferguson (1896), the equally infamous pro-segregation decision.
Gorsuch, meanwhile, spent much of his question time arguing that Casey’s undue burden standard is “difficult to administer” and should be abandoned. He even tried to get Rikelman to admit that, if the Court overrules Casey’s viability line, it must also scrap the undue burden test — a result that would effectively eliminate the constitutional right to an abortion.
In the past, Kavanaugh has sometimes pushed for more incremental attacks on Roe. In June Medical Services v. Gee (2019), for example, he argued in favor of placing complicated procedural barriers in the way of abortion plaintiffs that would make it difficult for them to bring their cases to federal court or to receive a meaningful remedy.
But, on Wednesday, Kavanaugh seemed no less eager to overrule Roe than Thomas, Alito, or Gorsuch. At one point, Kavanaugh rattled off a long list of landmark — and largely celebrated — Supreme Court decisions, including its school integration decision in Brown v. Board of Education (1954), its first one person/one vote decision in Baker v. Carr (1962), and its marriage equality decision in Obergefell v. Hodges (2015), which all overruled previous decisions.
The clear implication was that, if the Court could overrule precedent in those cases, why can’t it overrule Roe?
That leaves Justice Barrett, who often implies at oral argument that she might take a more centrist approach that her most conservative colleagues, but who also votes with the Court’s right flank much more often than not. Though Barrett’s questions were less revealing than Kavanaugh’s, they left little doubt that she disagrees with essential parts Roe and Casey.
Among other things, Barrett repeatedly brought up so-called “save haven” laws, which allow someone who recently gave birth to immediately give up their child for adoption (Barrett herself is the adoptive mother of two children). “Both Roe and Casey emphasized the burdens of parenting,” she noted, before asking why safe haven laws don’t “take care of that problem?”
In one particularly remarkable moment, Barrett appeared to argue that being forced to carry and birth a child is no big deal. “It doesn’t seem to me to follow that pregnancy and parenthood are all part of the same burden,” she said. “It seems to me that the choice, more focused, would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more” before terminating their parental rights after giving birth.
Barrett, in other words, appeared quite determined to erase Casey’s viability rule. And, while she was less explicit about whether she would eliminate Casey’s undue burden standard, the tone of her questioning was extremely dismissive of both Roe and Casey.
So the right to an abortion is in deep trouble. At the least, the Court appears very likely to overrule Casey’s viability standard — and there’s a very good chance that it will go all the way to overruling Roe entirely.
I will conclude by reiterating a point that I’ve made several times before, that the most important question in Dobbs is not whether the Court writes the magic words “Roe v. Wade is overruled.”
Dobbs is almost certain to announce a new legal standard governing abortion rights that is far less protective of those rights than Roe or Casey. The Court might explicitly overrule Roe. It might leave some small part of the right to an abortion — such as the undue burden standard — in place for at least a little while. Or it might announce a completely new legal rule that makes it functionally impossible for abortion plaintiffs to protect their rights, even if some hollow shell of Roe remains nominally on the books.
After today, it appears more likely than not that the Court will either explicitly overrule Roe or eliminate it in a more backhanded way. Either of these outcomes would mean the death of the constitutional right to an abortion.