[Update: On December 10, the Supreme Court issued its much-anticipated ruling on Texas' new vigilante-style anti-abortion law in the case of Whole Woman's Health v. Jackson. The new law bans abortions once a fetal heartbeat can be detected, usually six weeks after fertilization. In a cynical twist designed to evade federal court review, the law empowers private individuals rather than the state to bring civil actions to enforce the ban. In a strong signal that the court is prepared to overturn Roe v. Wade later this term (see below), the decision allows the Texas law to stand, pending further challenges in the lower federal courts.]
The six hardcore Republican activists who masquerade as impartial arbiters of constitutional rights on the Supreme Court are poised to overturn Roe v Wade, the landmark 1973 case that established a federal constitutional right to abortion. Either that, or they will gut Roe to the point where it is rendered toothless.
Whatever the nuances of the final ruling, the net result will be the same: Women’s reproductive freedom will be set back half a century. And the assault on Roe and abortion rights will only accelerate the GOP’s longstanding and ongoing crusade to return American jurisprudence to 1920s or, even worse, to the kind of reactionary federalism endorsed by Plessy v. Ferguson in 1896.
The Supreme Court’s verdict on Roe will come in the case of Dobbs v. Mississippi, which deals with a 2018 Mississippi law that bans almost all abortions after 15 weeks of pregnancy, roughly two months earlier than the 24-week standard for fetal viability set by Roe. The statute recognizes no exceptions for rape or incest.
Mississippi has asked the court not only to uphold its law, but to overrule Roe explicitly and entirely. The oral argument in Dobbs took place on December 1.
Although it is often difficult to predict the outcome of Supreme Court cases from the tone and tenor of oral argument, the handwriting on the wall in this one is easy to read.
Here’s a brief guide to help you along:
Chief Justice John Roberts
Key Question Asked: “Because viability, it seems to me, doesn't have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”
Roberts is what passes on the current court as a swing voter. Seen by some as an “institutionalist” concerned about the tribunal’s legitimacy, he’s committed to moving the court to the right, but more gradually and incrementally than his Republican confederates prefer.
True to form, in Dobbs, Roberts signaled an interest in discarding Roe’s viability test in favor of a standard that would focus on whether a state’s abortion laws afford women a reasonable or fair choice to terminate pregnancies. Mississippi’s 15-week cutoff, he suggested, would meet the new criterion.
It’s unlikely, however, that Roberts will persuade the other conservative Justices to go along with any compromises.
Key Question: “[W]hat constitutional right protects the right to abortion?”
Thomas has long called for invalidating Roe, dating back to 1992, when he joined the dissenting opinion written by Antonin Scalia in Planned Parenthood v. Casey. The dissent argued that the states should be free to ban abortion because “the Constitution says absolutely nothing about it.”
Thomas repeated his call to overturn Roe in a dissenting opinion he penned in 2020 in a case from Louisiana--Russo v. June Medical Services. “[T]hose decisions,” he wrote, referring to Roe, Casey and other rulings, “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”
Thomas senses that with the arrival of Dobbs, his goal is finally in reach.
Key Question: “Does any judicial decision at that time [when the 14th Amendment was adopted in 1868] or shortly or immediately after 1868 recognize that abortion was a right, liberty, or immunity?”
Decoding Alito’s question takes a little background in constitutional law. In Roe, the Supreme Court held that abortion rights were grounded in a constitutional right to privacy, and that the due process clause of the 14th Amendment, ratified in 1868, extended those rights to the states.
Since his confirmation in 2006, Alito has voted to uphold every restrictive abortion statue that has come before the high court. He is a lock in Dobbs not only to uphold Mississippi’s law, but to strike down Roe altogether.
Key Question: “If this Court will reject the viability line, do you see any other intelligible principle that the Court could choose?”
Like Thomas and Alito, and in contrast to Roberts, Gorsuch isn’t interested in replacing the viability standard with something else that might theoretically preserve some semblance of a woman’s right to choose. He wants to remove federal protections for choice.
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Gorsuch does not have a long track record on abortion, but he voted in 2020 to uphold Louisiana’s highly restrictive abortion law in the June Medical case.
Key Question: “[W]hy … doesn't the history of this Court's practice … tell us that the right answer [to the question of the constitutionality of abortion] is actually a return to the position of neutrality.”
In a rambling series of comments and poorly worded queries, Kavanaugh suggested that overturning Roe and leaving the legality of abortion for the states to determine would place the court in a position of neutrality, and that such neutrality would be preferable to taking a position on a contentious and divisive issue.
Kavanaugh also suggested that overturning Roe would be in keeping with the court’s history of overruling prior opinions that were wrongly decided. As a prime example of this history, he cited Brown v. Board of Education, the seminal 1954 decision that overruled Plessy v. Ferguson.
Coming from a Supreme Court Justice, this is remarkably bad lawyering. Fundamental constitutional rights can never be left to the states. That’s what makes fundamental rights fundamental—they apply across the country. Far from following in the footsteps of Brown, Kavanaugh’s views would, in effect, usher in a return to Plessy, and allow some states to respect constitutional rights and others to disregard them.
Amy Coney Barrett
Key Question: “[B]oth Roe and Casey emphasize the burdens of parenting, and … forced parenting, forced motherhood, [and how that] would hinder women's access to the workplace and to equal opportunities … Why don't the safe haven laws take care of that problem?”
It’s hard to imagine any Justice topping Kavanaugh’s outrageous remarks, but Barrett succeeded, demonstrating a tone-deafness to the burdens of pregnancy, especially for poor women and victims of rape and incest.
But Barrett is a religious zealot, and reportedly a member of “People of Praise,” a small, tightly knit, patriarchal charismatic Christian sect based in South Bend, Indiana, that professes admiration for "the first Christians who were led by the Holy Spirit to form a community." According to the Washington Post, a People of Praise directory from 2010 listed her as a “handmaid,” a position of leadership for women in the group.
In a 2006 law school commencement speech at Notre Dame, Barrett urged graduates to become a "different kind of lawyer," who sees that a "legal career is but a means to an end, and… that end is building the kingdom of God… [I]f you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer."
Count on her to vote to overturn Roe in keeping with both her personal devotions.
Key Question: “To overrule [Roe] under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court's legitimacy beyond any serious question.”
More than a question, Breyer’s remarks amounted to a plea to his colleagues not to take drastic action. Invoking Alexander Hamilton’s famous commentary from the Federalist Papers, he went on to remind them that the court has “no purse, no sword, and yet we have to have public support…[which] “comes primarily from people believing that we do our job.”
His plea, almost assuredly, left the court’s conservatives unmoved.
Key Question: “[T]o prevent people from thinking that this Court is a political institution that will go back and forth depending on what part of the public yells loudest and … prevent … people from thinking that the Court will go back and forth depending on changes to the Court's membership…there has to be a strong justification in a case like this [to overturn a 50 year-old precedent].”
Like Breyer, but without the reference to Hamilton, Kagan pleaded seemingly in vain to rescue Roe.
Key Question: “Will this institution survive the stench that this [overturning Roe] creates in the public perception that the Constitution and its reading are just political acts?”
The most direct, courageous and down-to-earth of the court’s liberals, Sotomayor hit the jurisprudential nail on the head. If Roe is overruled, the public will perceive the court as just another political body.
If anything, she understated the odor that is already wafting from the court’s hallowed halls.
As reflected in recent opinion polling, the court’s public approval rating has plunged to record lows, creating the very crisis of legitimacy that many of the Justices spoke of with great angst during the Dobbs oral argument. That crisis has been driven by a series of rightwing rulings the court has handed down on a host of critical issues, ranging from voting rights and gerrymandering to union organizing, campaign finance, the Second Amendment, and, barring some kind of divine intervention, abortion.
By the end of June, in addition to its abortion ruling in Dobbs, the court is expected to hand down potentially game-changing opinions on environmental regulation, and the separation of church and state under the First Amendment’s Establishment Clause in a case from Maine that involves public funding or religious schools. The court is also slated to issue another pivotal ruling on gun control in a case from New York.
And there is no reason for the court’s conservatives to end their quest to transform the Constitution at the conclusion of the current term. The conservative legal movement is ascendant. It is a cancer that has metastasized throughout our law and legal institutions, and must be stopped before it is too late.