The state of Mississippi has passed a law that effectively declares: We prefer to keep company with France and Germany than China and North Korea. Now, the Supreme Court will decide whether Mississippi can restrict abortion to 15 weeks, as most civilized nations do. To do so, the justices must overturn Roe v. Wade and Casey v. Planned Parenthood — which created a right to abortion that exists nowhere in our Constitution — and return the question to the states, where it belongs.
Remarkably, in Wednesday’s oral arguments, none of the liberal justices made any substantive arguments to defend Roe or Casey as rightly decided. Instead, they argued politics and process. First, they said overturning Roe and Casey would — in Justice Sonia Sotomayor’s words — create a political “stench” that the court might not “survive.” But the job of a Supreme Court justice is to decide cases based solely on the law and the Constitution, not politics. Doing otherwise is precisely what damages its credibility.
Second, they argued process — that the principle of stare decisis (Latin for “to stand by things decided”) requires the court not to reverse its previous decisions Roe and Casey. But, as John Yoo, professor of law at the University of California at Berkeley, explains, stare decisis is usually used to “defend decisions you know to be wrong — because if they weren’t wrong, you wouldn’t need stare decisis.”
counterpointPro-lifers, RIP. The pro-death movement is born.
Indeed, Justice Brett M. Kavanaugh pointed out that many of the court’s most consequential decisions — celebrated by liberals — overruled precedent in cases that were wrongly decided. “Brown v. Board outlawed separate but equal,” he said, “Baker v. Carr, which set the stage for one person, one vote. . . . Miranda v. Arizona, which required police to give warnings . . . about the right to remain silent. . . . Lawrence v. Texas, which said that the state may not prohibit same-sex conduct. . . . Gideon v. Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage.” Had the court adhered to stare decisis in those cases, “the country would be a much different place.”
Perhaps the most stunning moment came when Justice Samuel A. Alito Jr. asked Solicitor General Elizabeth B. Prelogar if the court’s decision in Plessy v. Ferguson, which upheld racial segregation, were reargued in 1897, “would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?” After hemming and hawing, she finally said, “This court, no, has never overruled in that situation just based on a conclusion that the decision was wrong.” When you argue that stare decisis would require the court to uphold Jim Crow, you are losing.
So, what will the court do? Based on Wednesday’s arguments, it seems unimaginable that the court will declare Mississippi’s law unconstitutional. The second option is that sought by Justice Clarence Thomas — and likely supported by Justices Alito, Neil M. Gorsuch, and Amy Coney Barrett: The court strikes down Roe and Casey, declaring that these decisions, like Plessy before it, are so egregiously wrong that they must be overturned.
A third option — which Chief Justice John G. Roberts Jr., the court’s champion of incrementalism, seemed to be suggesting — is to find some Solomonic middle ground in which the court upholds Mississippi’s law without overturning Roe and Casey. The problem for Roberts is that Casey declared that before viability, states cannot prohibit abortion or create an “undue burden” for accessing it through regulations — and no one argues that an unborn child is viable at 15 weeks. That did not stop Roberts from floating a reconception of Casey that erased the viability line. “Viability, it seems to me, doesn’t have anything to do with choice,” he said. “If it really is an issue about choice, why is 15 weeks not enough time?” But if the court arbitrarily sets the line at 15 weeks, states will soon return to ask it to rule whether 12 weeks, or 10, is “enough time” — forcing the justices to continually revisit the issue.
The good news is: With Barrett’s appointment, Roberts is no longer the deciding swing vote. To prevail, he needs to persuade the court’s liberal bloc plus another conservative, such as Kavanaugh, to go along. And in oral arguments, it did not look like Kavanaugh was biting. “If we think that the prior precedents are seriously wrong,” Kavanaugh asked, “why, then, doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality?” It is. And the decision is likely in Kavanaugh’s hands.