Reading the room: Observers agree Supreme Court looks poised for a major change on Roe

Erin Schaff/The New York Times via AP, Pool

As Ed has already pointed out this morning, you can’t always tell from oral arguments what Supreme Court Justices are thinking, much less where they will land in a final decision. But that doesn’t stop media outlets of all stripes from doing their best to read the room. And there seems to be general agreement from those who listened to the arguments this morning that there’s not a lot of good news here for abortion supporters. First up is Nina Totenberg at NPR:


The right to an abortion in the United States appeared to be on shaky ground as a divided Supreme Court heard arguments Wednesday on the fate of Roe v. Wade, the court’s 1973 decision that legalized abortion in the United States…

The court’s three newest justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, appeared to signal they are ready to side with Mississippi — but it wasn’t immediately clear if all of them would strike down Roe, as the state of Mississippi had asked.

And here’s the Washington Post:

The Supreme Court on Wednesday signaled that it is on the verge of a major shift in its abortion jurisprudence and is likely to uphold a Mississippi law that mostly prohibits the procedure after 15 weeks of pregnancy.

Whether that would mean overruling Roe v. Wade’s finding that women have a fundamental right to end their pregnancies was unclear. But none of the six conservatives who make up the court’s majority expressed support for maintaining the court’s rule that states may not prohibit abortion before the point of fetal viability, which is generally estimated to be between 22 and 24 weeks.

Chief Justice John G. Roberts Jr., often the most moderate of the conservatives, said Mississippi’s limit of 15 weeks was not a “dramatic departure” from viability and gave women enough time to make the choice to end their pregnancies.

CNBC echoed those conclusions:


The Supreme Court’s conservative majority on Wednesday appeared poised to side with Mississippi in its bid to uphold a 15-week abortion ban, a ruling that would erode decades-old precedent protecting the right to an abortion before viability…

“Viability, it seems to me, doesn’t have anything to do with choice,” Chief Justice John Roberts said. “If it really is an issue about choice, why is 15 weeks not enough time?”

Back in August, Bloomberg published a piece arguing that Justice Kavanaugh might turn out to be the best hope of preserving Roe. Kavanaugh had clerked for Justice Kennedy and was seen as someone who might try to find middle ground and thereby become the crucial new swing vote on the court. But CNBC didn’t hear much hope of that today:

“The problem, I think the other side would say, and the reason this issue is hard, is that you can’t accommodate both interests. You have to pick. That’s the fundamental problem,” Kavanaugh told U.S. Solicitor General Elizabeth Prelogar, who also argued against Mississippi.

“And one interest has to prevail over the other at any given point in time, and that’s why this is so challenging, I think. And the question then becomes, what does the Constitution say about that?” Kavanaugh said.

On Fox News, Jonathan Turley said that Kavanaugh was delivering “haymakers” to the pro-choice view:

What I thought was most interesting was Kavanaugh. I think a lot of pro-choice supporters hope that he might, as he often does, tend to follow [Chief Justice John] Roberts. He was very hard-hitting in a lot of his questions about the basis for [Roe v. Wade]. And also some very substantial reductions on Roe and Casey. So I think that pro-choice folks will probably be disappointed in what they heard from Kavanaugh today…

It seems like Kavanaugh was really sort of pressing again on the basis for Roe, and also whether they should keep the the the standard of the viability line. And he was really delivering some haymakers to the pro-choice side as to some of their claims.


So, despite the ongoing difference of opinion over what should happen here, there seems to be a general consensus on all sides that the oral arguments don’t look good for Roe/Casey continuing as they are. Here’s the Fox News segment featuring Jonathan Turley and Andy McCarthy.

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