Supreme Court looks for a way to abandon ‘Roe v. Wade’
“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 — or, to be more precise, how — to abandon the Roe v. Wade precedent that Blackmun helped write into law almost 50 years ago.
The oral argument made it all too 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 altogether.
The 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, and yet 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 that had seemed poised to take the plunge of overruling instead stepped back and reaffirmed Roe.
That leaves two questions: Are two or perhaps three 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 that “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 nearly so certain that what he had termed “the most central principle” was all that important after all. Blackmun himself, in his 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 it wasn’t involved in the law at issue 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 to abandon the 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, if 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. In the guise of asking questions, he laid 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, in the event it takes that step, as merely saying that the Constitution is “neither prolife nor pro-choice” but “scrupulously neutral” on the matter of 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, or 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 the 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?”
Sen. Susan Collins, R-maine, call your office. This doesn’t sound like the guy who convinced you he wouldn’t overrule Roe because it is “settled law.”
Amy Coney Barrett, the newest justice, was the 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 parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities,” she asked Rikelman, “why don’t the safe haven laws (allowing women to surrender children for adoption without any questions asked) take care of that problem?”
Barrett allowed that “there is, without question, an infringement on bodily autonomy … which we have in other contexts, like vaccines.” But a woman who has given birth to five children and adopted two others surely understands the difference between a jab and a pregnancy and, one would think, what it means to give a child up for adoption after carrying it to term.
These three are the “reasonable” conservatives. Blackmun’s wind doesn’t blow. It howls.