The question isn’t if ‘Roe v. Wade’ will be overturned, but how

WASHINGTON — “For today, at least, the law of abortion stands undisturbed,” Justice Harry A. Blackmun wrote in 1989, dissenting in a case that cut back on constitutional protection for abortion rights. “For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.” On Wednesday, that icy wind whistled through a nearly empty Supreme Court chamber as justices considered whether — actually how — to abandon the Roe v. Wade precedent Blackmun helped write into law almost 50 years ago.

The oral argument made it clear: Constitutional protection for a woman’s right to choose whether to end an unwanted pregnancy is about to be dramatically curtailed, if not eliminated.

Advocates trying to forestall that eventuality, Julie Rikelman of the Center for Reproductive Rights and U.S. Solicitor General Elizabeth B. Prelogar, did an excellent job, but the argument in Dobbs v. Jackson Women’s Health could hardly have gone worse.

Three justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — are all but guaranteed votes to overrule both Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 case in which a court reaffirmed Roe.

That leaves two questions: Are other justices prepared to join them? If not, how much damage will be done by a decision that upholds the Mississippi law, which prohibits most abortions after 15 weeks, but doesn’t explicitly overrule Roe? The answers appear to be “perhaps” and “significant.”

The three justices who occupy what passes for the middle on this court each offered separate grounds for worry.

In June 2020, Chief Justice John G. Roberts Jr., the least radical of the three, authored a concurring opinion striking down a Louisiana abortion law in which he noted “Casey reaffirmed ‘the most central principle of Roe v. Wade,’ ‘a woman’s right to terminate her pregnancy before viability.’” On Wednesday, he didn’t sound so certain that “the most central principle” was that important. Blackmun himself, in private papers, had referred to the viability line as “dicta,” a legal observation not central to the holding, Roberts noted. The issue of viability, he added, wasn’t “briefed or argued” in Roe and wasn’t involved in Casey. Even more ominously, Roberts asked, “If it really is an issue about choice, why is 15 weeks not enough time?”

All of which pointed toward Roberts voting to uphold the 15-week law and abandon a current rule that prevents states from blanket prohibitions on abortions at any point before viability.

Where would that stop? At 12 weeks, or eight, or six as another Mississippi law would have it? Both sides in the case agreed, for different reasons, that there was no logical way to hold the line at 15 weeks.

Roberts’s comments were the good news. Justice Brett M. Kavanaugh seemed to be setting the stage for going further, laying down the marker that granting Mississippi’s request to overrule Roe wouldn’t interfere with any state that wanted to keep abortion legal.

Kavanaugh sought to position the court as saying the Constitution is “scrupulously neutral” on abortion. Oh, please. Declining to protect the right to abortion is no more a decision not to take sides than is declining to protect the right to vote, the right to worship freely or the right to own guns. It is saying that the court has chosen to allow states, by majority rule, to interfere with the private decision-making of women who want to terminate their pregnancies.

And Kavanaugh rattled off a long list of landmark cases — from school integration to the right to counsel to same-sex marriage — in which the court had overruled earlier decisions. If the court had heeded admonitions to respect precedent, he noted, “the country would be a much different place. … Why, then, doesn’t history … tell us that the right answer is actually [to] … not stick with those precedents in the same way that all the other cases didn’t?”

Amy Coney Barrett was hardest to read. But one telling exchange came when she questioned whether forcing women to continue with unwanted pregnancies was such a big burden if they could easily put the children up for adoption.

While abortion rights advocates “focus on the ways in which … forced motherhood would hinder women’s access to the workplace and to equal opportunities,” she asked Rikelman, “why don’t the laws allowing women to surrender children for adoption, no questions asked, take care of that problem?”

Blackmun’s wind doesn’t blow. It howls.