The immediate future of abortion rights in the United States might depend on whether Chief Justice John G. Roberts Jr.’s attempt at compromise Wednesday was dead on arrival or just an opening bid.
Conservative justices seemed open to overturning Roe v. Wade and 50 years of jurisprudence that guarantees a fundamental right to abortion, and skeptical of half-measures to resolve the dispute over a law that mostly bans the procedure after 15 weeks of pregnancy.
The court’s outnumbered liberals responded with personal, heated rhetoric — Justice Sonia Sotomayor warned of a “stench” that could surround the court, and Justice Stephen G. Breyer startled listeners when he said justices who contemplate overturning a “watershed” decision of the court “better be damn sure” they can justify it.
The issue of abortion cleaves the nation and has come to dominate the Supreme Court’s current term. Just last month the court heard a pair of fast-tracked challenges to Texas’s six-week abortion ban, and it has yet to issue a ruling.
Some observers believe it is taking a toll on the nine justices.
Wednesday’s argument “created the remarkable impression of a court at risk of disintegration,” said Richard Lazarus, a Harvard Law School professor who studies the court. “The now outsize conservative majority knew they could safely cast a deaf ear to the concerns of other justices, including even the chief justice. And the resulting frustration of the three more liberal justices was palpable.”
The tenor could change. In the months it can take to render a decision, compromise often enters the picture as the justices search for five votes. Other factors will come into play, including public reaction and consideration of whether a bold change in the court’s jurisprudence will reinforce a growing perception among Americans that the court’s decisions are political.
“Of course, they know when they do this, if they do this, it is going to be a huge, transformative moment in American politics,” said Daniel Epps, a law professor at Washington University in St. Louis. “However much the court has been in the crosshairs in recent years, this is going to turn up the volume to a whole other level. They know that. Some of them don’t care.”
The issue of abortion rights has always been different. The Supreme Court specifically factored in public reaction to the possibility of revoking the right to abortion when it reaffirmed the central finding of Roe in 1992’s Planned Parenthood v. Casey.
And the court’s newest member, Justice Amy Coney Barrett, had that in mind Wednesday as Mississippi asked the court to overrule Roe and Casey and uphold its near-total ban on abortions.
Casey “very explicitly took into account public reaction,” Barrett told Mississippi’s solicitor general, Scott G. Stewart. “Is that a factor that you accept, or are you arguing that we should minimize that factor?”
The court’s consideration of that in Casey was “wrong” and a “mistake,” Stewart said.
“I think the court could very, very powerfully say, look, our legitimacy really derives from our willingness to stand strong and stand firm in the face of whatever is going on and stand for constitutional principle and . . . overrule when it’s appropriate.”
Casey reaffirmed the holding of Roe that states cannot prohibit abortion before fetal viability, usually around 22 to 24 weeks. But it also recognized states have an interest in protecting unborn life and said they could regulate the procedure as long as that did not impose undue burdens on the right to an abortion.
Mississippi’s 15-week ban is in direct conflict with that, and the justices said they took the case to decide whether all pre-viability bans on elective abortions are unconstitutional.
Roberts floated the idea of essentially rewriting Casey to say yes in the same way the Casey court rewrote Roe.
There was nothing magic about the viability line, he said. Roberts suggested that the real import of Roe was the choice to obtain an abortion and that 15 weeks could be an appropriate period for that. Studies show that 90 percent of abortions are performed before then.
But there was almost no reaction among Roberts’s colleagues, except for attempts by conservative justices to have the lawyers agree that such a plan would be unworkable.
Stewart said Roe and Casey must be overturned. The lawyers for the Biden administration and abortion providers said removing the viability line would simply encourage states to enact prohibitions earlier and earlier in pregnancy, as many already have done.
There can be a tendency to read too much into oral arguments.
Edward Whelan, a senior fellow at the Ethics and Public Policy Center who hopes the court uses the Mississippi case to overturn Roe, said that Roberts did not appear to make headway with his colleagues.
But Whelan was also cautious. “We all focus on the oral argument because it’s the most public episode in any case, but there can be so much back and forth among the justices, among the law clerks, before and after the case is argued,” said Whelan, who clerked for Justice Antonin Scalia. “We’re just getting a tiny glimpse of the justices’, thinking on the matter, and there’s no reason to assume that their thinking is fixed at the time of oral argument.”
Roberts has pulled together majorities before that resulted in surprise decisions. His vote with the court’s liberals to uphold the Affordable Care Act is the most well known.
But he would have to persuade at least one of his fellow conservatives to go along with retaining part of Roe if he could bring along the court’s liberals.
Roberts “in Houdini-like fashion steered the court from highly partisan rulings in many high-profile cases,” Lazarus said. But he added the chief justice seems to lack the votes “to do so in perhaps the highest-profile case of all.”
Sherry Colb, a Cornell University law professor who writes extensively about abortion rights, agreed. “If the country acts like this isn’t an especially alarming event, I think he’ll be on his own,” she said.
Key to the outcome will be President Donald Trump’s nominees to the court: Barrett and Justices Neil M. Gorsuch and Brett M. Kavanaugh. Focusing on the Supreme Court was a Trump campaign promise.
When asked about overruling Roe, Trump said: “If we put another two or perhaps three justices on, that is what will happen. That will happen automatically, in my opinion, because I am putting pro-life justices on the court.”
Kavanaugh is close with Roberts, at times sharing his inclination for incrementalism. In the last term, Kavanaugh was in the majority in the court’s decisions more than any other justice, followed by the chief justice.
But Kavanaugh did not acknowledge Roberts’s line of questioning in search of a compromise Wednesday. Instead, Kavanaugh spoke positively about Mississippi’s view that the Constitution is silent on the issue of abortion and “neutral” — neither “pro-life nor pro-choice on the question of abortion,” as Kavanaugh put it.
“When you have those two interests at stake and both are important . . . why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” he asked Solicitor General Elizabeth B. Prelogar, representing the Biden administration.
Prelogar said it is not up to the states to decide whether to honor a fundamental right of women recognized by the court for decades.
Women could be forced to carry pregnancies to term, she said, or they “will have no recourse other than to travel if they’re able to afford it or to attempt abortion outside the confines of the medical system or to have a child even though that was not the best choice for them and their family.”
Epps, the Washington University professor, said most liberals underestimate the extent to which overturning Roe has long been the target of the conservative legal movement, and how any decision short of formally overruling the precedent would be a disappointment.
“This is the case where everybody’s eyes are on them,” he said. “They are going to get vilified if they vote to overturn Roe. On the other hand, they are going to get vilified by the people on the right if they don’t.”