On Wednesday, the Supreme Court’s conservative justices put on what appeared to be a carefully orchestrated performance, attempting to convince the country of the court's legitimacy ahead of its decision to overrule the nearly 50-year-old constitutional right to an abortion.
The only real question — if it is that — is whether Roe and Casey will be gone with this decision, or whether the Court will leave the ultimate death knell to the next case.
There is no question about the plan of the conservative majority. Unless there is a significant (and highly unlikely) change to the composition of the court before the conservatives accomplish their aim, this is the path ahead.
Regardless of whether they do so with this week’s case out of Mississippi — which seems likely — they will overturn Roe v. Wade, the 1973 case that established the constitutional right, and Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 decision reaffirming Roe while establishing the “undue burden” framework for judging whether abortion restrictions are constitutional.
The only real question — if it is that — is whether Roe and Casey will be gone with this decision, or whether the court will leave the ultimate death knell to the next case. Regardless of when it happens, the millions of people who could lose the right to an abortion will quickly feel the consequences — in decisions that ripple throughout their lives, from when and how they form families to how they approach work to so many other areas of their lives.
Unless Chief Justice John Roberts wants to and is able to convince another conservative to join him in what would pass — in this moment — for a middle-ground opinion upholding Mississippi’s 15-week abortion ban while also (at least in name) affirming the continued validity of Roe and/or Casey, there will be five justices voting to end the federal constitutional right to an abortion.
Even before Wednesday’s arguments, Roberts’ ability to do so seemed unlikely. Recall that Roberts was unable to secure the vote of even one other conservative justice to halt the much more extreme six-week vigilante abortion ban out of Texas from going into effect in September while litigation over the constitutionality of the law proceeded. (The law remains in effect today, more than three months later.)
The arguments on Wednesday were, if anything, worse because, at least on paper, the five-justice majority in the Texas case insisted that its decision to allow the law to go into effect had nothing to do with its constitutional merits. On Wednesday, though, from the opening of the argument from Mississippi’s lawyer, there was no doubt of what was at stake.
What we got might have looked like serious engagement with complex constitutional principles — if it wasn’t all so transparently in service of a commitment to eliminating a constitutional right that was established before almost all people still facing the decision whether to get an abortion were born.
“Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law,” Mississippi Solicitor General Scott Stewart declared confidently. “Roe and Casey have failed.”
Thus began Wednesday’s performance. Over the course of the next two hours, the conservative justices did their best to put forward a good show. What we got might have looked like serious engagement with complex constitutional principles — if it wasn’t all so transparently in service of a commitment to eliminating a constitutional right that was established before almost all people still facing the decision whether to get an abortion were born.
Both Justices Brett Kavanaugh and Amy Coney Barrett — the Trump appointees to the court who replaced justices who had voted to affirm the right to an abortion (Justices Anthony Kennedy and Ruth Bader Ginsburg, respectively) — asked questions that made it appear unlikely that they were looking for compromise.
For his part, Kavanaugh blithely suggested that overturning Roe and Casey was the middle ground, asking the lawyer for Mississippi, “[Y]ou're not arguing that the court somehow has the authority to itself prohibit abortion or that this court has the authority to order the states to prohibit abortion as I understand it, correct?” This “fetal personhood” argument wasn’t at issue on Wednesday — but Kavanaugh made it clear that he’s willing to move that into the discussion while trying to suggest that Roe and Casey are, in effect, the liberal position. In that world, his question suggested, ending Roe and Casey is the “neutral” position.
Meanwhile, Barrett turned her focus to “safe haven” laws, noting that “in all 50 states, you can terminate parental rights by relinquishing a child.” Detailing how Jackson Women’s Health Organization and other briefs supporting the abortion provider discussed the problems of “forced parenting, forced motherhood,” Barrett then asked the provider’s lawyer, Julie Rikelman, “Why don't the safe haven laws take care of that problem?” While Barrett went on to acknowledge that ending abortion rights would restrict “bodily autonomy,” she also immediately suggested that such restrictions were comparable (if not equivalent) to vaccine mandates.
Although Rikelman detailed how the court in Casey went much further than solely discussing parenthood, specifically relying on cases regarding bodily autonomy, Barrett’s work in asking the question was done.
As with an earlier question by Barrett that prompted Mississippi’s lawyer to answer that only abortion, and no other rights, would be affected by a decision overturning Roe and Casey (a point that Justice Sonia Sotomayor did not let stand unchallenged), most of the conservatives’ questions were not aimed at resolving some heretofore unanswered question. And while that happens on occasion in any argument, from any justice, Wednesday’s questioning from the right felt particularly hollow.
While Justice Neil Gorsuch did ask one line of questioning suggesting that he might be open to a middle-path solution, it was, nonetheless, a path that would obliterate Roe’s viability standard that has been in place since 1973. In other words, any glimmers of hope for Roe’s continuity are more akin to a temporary flame that can be extinguished at a later date.
The decision in the Mississippi case will, at least, mean that Mississippi and other states can ban abortions after 15 weeks — more than two months before viability. This, in and of itself, would be an implosion of the right that Roe guaranteed and Casey affirmed. It will, quite likely, be even more dramatic, with a decision that eliminates the right to an abortion altogether. Even if the Mississippi case is not the end of Roe, however, Wednesday’s argument made clear that is the path we are on.
The conservative justices told us so.