Roe the day: SCOTUS hears direct challenge to abortion

AP Photo/Rogelio V. Solis

Get ready for a day of contentious debate, impassioned rhetoric, and character assassination — and that’s what will happen outside of the Supreme Court today. Oral arguments begin later this morning in Dobbs v Jackson Women’s Health, a test case on abortion restrictions that takes a much different tack than most other challenges to Roe v Wade. Rather than nibble around the boundaries of Roe and Casey, Mississippi’s attorneys will directly ask the court to toss both out and return abortion to the states for regulation:

The Supreme Court will hear arguments on Wednesday in the most important abortion case in a generation, a challenge to a Mississippi law that bars most abortions after 15 weeks of pregnancy. The law is at odds with Roe v. Wade, the 1973 decision that established a constitutional right to abortion and prohibited states from banning abortions before fetal viability, the point at which the fetus can survive outside the womb, or around 23 weeks. …

The two sides say there is no middle ground. Lawyers for the state argue that the Constitution says nothing about a right to abortion and that Roe is “egregiously wrong.” They urge the court to overrule the decision and to return the question of whether and when to allow abortions to the states.

Lawyers for Mississippi’s only abortion clinic say that Roe was a principled decision that has been repeatedly reaffirmed by the Supreme Court, most notably in Planned Parenthood v. Casey, the 1992 decision that revised Roe but retained its core holding, that women can choose to have abortions until fetal viability.

At this point there’s not much to add to the arguments on abortion — not the legal, moral, or scientific arguments. It may be the first time in nearly 30 years that a direct challenge to Roe has made it to the Supreme Court, but in most respects the arguments haven’t really changed. Only the line-up has, and that will also weigh heavily on the court’s thinking — or so the NYT thinks, or hopes, anyway:

Abortion rights supporters also say that overruling Roe could damage the legitimacy of the Supreme Court by doing away with what has been a constitutional right for half of a century following a change in the court’s membership. Justice Ruth Bader Ginsburg, who believed that women’s equality requires access to abortion, died last year and was replaced by Justice Amy Coney Barrett, who has said she opposes abortion.

If that argument worked with these judges, the court wouldn’t be hearing Dobbs at all. The court did, however, attempt to limit the review to just that of viability. That standard got created in Casey.  Where Roe only recognized the privacy right of doctors to perform abortions in the first trimester, and Doe v Bolton simultaneously applied the privacy right to the women seeking abortions, Casey  set viability as the standard nineteen years later. The court signaled that it might be looking at a Solomonic solution that would cleave the baby in two, this time nearly literally.

Is there any such middle ground? The Washington Post’s analysts don’t see one, and view the Solomonic solution just as poorly as Solomon himself did:

When the Supreme Court said it would review that decision, it said it was limiting its inquiry to “whether all pre-viability prohibitions on elective abortions are unconstitutional.”

The outcome, according to Sherry Colb, a Cornell University law professor who has written extensively about abortion rights, “is not a nail-biter.”

“The Supreme Court will uphold the Mississippi 15-week ban,” she said. “It will say that it is not overruling Casey because it does not need to reach the question, since a 15-week ban does not impose an undue burden. That statement will be at best manipulative and at worst dishonest.”

Commentators on the left and right agree that it is difficult, if not impossible, to uphold the law without altering the court’s clear instruction that pre-viability bans are unconstitutional. Viability is usually defined as between 22 and 24 weeks of pregnancy, months later than Mississippi’s ban.

“It’s very hard for me to see how the court could uphold the 15-week law without entirely eliminating the constitutional entitlement to elective abortions in Roe and Casey,” said University of Notre Dame law professor Sherif Girgis, a former clerk to Justice Samuel A. Alito Jr. “And by that, I don’t mean that I think that a middle ground would be unsound. . . . I actually mean it would be impossible to imagine a lawyerly argument” that could embrace both.

A 15-week ban would actually extend Roe‘s initial grant, which wasn’t considered an undue burden until Casey. Peeling off Casey would allow more regulation by states while keeping the core Roe decision in place (along with Doe) and preventing states from banning abortions outright. That would also dispense with the novel quasi-ban in Texas, and it would also bring American abortion access more in line with Europe’s much more conservative approach.

It would also do nothing more than infuriate everyone, but perhaps it would infuriate everyone equally. If the court wanted a political strategy in dealing with abortion and a solution that focused on a viability standard rather than abortion itself, repealing Casey while keeping Roe and Doe might make some sense. That might be tough to explain from a legal perspective, as Roe and Doe were the innovations and Casey at least had grounding in their precedents, but this court has made us suffer from some tortured explanations in the past.

Frankly, though, I find it almost impossible to believe this court will move even that far on either Casey or Roe. It’s the same court that took three attempts to rule that absurd and unbalanced restrictions on religious worship centers were unconstitutional in the pandemic. It’s the exact same court that punted on a clearly unconstitutional attempt by the CDC to impose eviction moratoria. Chief Justice John Roberts and Justice Brett Kavanaugh are establishmentarians not inclined toward radical shifts, and Justice Amy Coney Barrett has at times leaned in that direction as well. Don’t forget her ringing defense of stare decisis at Notre Dame in 2013, too, in which she cautioned that reversing fundamental decisions required a “consensus” that clearly won’t exist on this court.

Oral arguments will get live-streamed, beginning at 10 am ET. I’ll offer the usual warning that the Socratic method employed by the Supreme Court doesn’t necessarily offer a way to easily predict the eventual outcome. It should be safe to assume, however, that we won’t get the decision until the justices have all boarded a plane for the Bahamas in late June when the term ends.