At least five justices expressed a willingness to significantly pare down, if not overturn, Roe v. Wade, during Wednesday’s argument over a Mississippi law prohibiting abortion after 15 weeks.
The nearly two hours of oral arguments revealed a court divided not only on the merits of the particular state law, but also on whether compromise is possible on abortion rights, the future of the court‘s standing with the American public, the bar for overturning longstanding precedent and what other dominoes might fall should a majority decide to overturn Roe.
Here are POLITICO’s five takeaways from the arguments:
Roberts seeks a compromise, but finds no takers
As many expected, Chief Justice John Roberts called for compromise. But no one else — not the lawyers for either side, nor the other justices — seemed interested in buying what Roberts was selling.
Roberts suggested that Mississippi’s law banning abortion after 15-weeks of pregnancy really wasn’t too much of an imposition on the rights of women and that the court could uphold it without overturning Roe v. Wade.
“Why is 15 weeks not enough time?” the chief justice asked, arguing that a new standard of 15 weeks isn’t “a dramatic departure” from the current cutoff of fetal viability, which occurs around 24 weeks of pregnancy.
That proposal seemed to satisfy no one.
“That’s not a workable standard and that’s not a constitutional standard,” said Julie Rikelman, an attorney with the Center for Reproductive Rights who represented Mississippi’s sole remaining abortion clinic during oral arguments. She argued that such a ruling would effectively give states a green light to enact total bans on the procedure.
“Without viability, there will be no stopping point,” she said.
Solicitor General Elizabeth Prelogar agreed, warning the court that approving a 15-week ban without articulating any clear legal principle behind it would lead to a flurry of state laws testing whether earlier bans were also close enough to viability to pass constitutional muster.
Many states, including Mississippi, already have such laws on the books — waiting for the justices to dial back abortion rights.
“If that were to happen, then immediately states with six-week bans, eight-week bans, ten-week bans, and so on, would seek to enforce those with no continued guidance of what the scope of the liberty interest is going forward,” Prelogar said.
Mississippi Solicitor General Scott Stewart also sought to push the justices away from any middle ground, arguing that the “undue burden“ test, which was laid out 30 years ago in Planned Parenthood v. Casey, has proven mushy.
“It’s a very hard standard to apply. It’s not objective,” Stewart said. “I think that’s one of the very strong reasons to just go all the way and overrule Roe and Casey.”
Have times actually changed for women since 1973 and does it matter?
Attorneys for Mississippi focused on how much society has changed in the 50 years since Roe was decided and said that should force a reconsideration of the ruling.
“In 1973, there was little support for women who wanted a full family life and a successful career,” wrote the state’s attorney general in its brief. “Maternity leave was rare. Paternity leave was unheard of. The gold standard for professional success was a 9-to-5 with a corner office. The flexibility of the gig economy was a fairy tale.”
The state’s solicitor general pushed this point on Wednesday, saying: “Contraception is more accessible and affordable and available than it was at the time of Roe or Casey.”
Lawyers for both the Mississippi clinic and the Justice Department roundly rejected these arguments.
Prelogar pointed out that “contraceptives existed in 1973 and in 1992, and still the Court recognized that unplanned pregnancies would persist and deeply implicate the liberty interests of women.” She also highlighted the struggle of low-income people to afford contraceptives and the small but not insignificant rate they fail as additional reasons to keep abortion accessible.
A similar back-and-forth ensued over the more recent proliferation of so-called “safe haven” laws that allow people to give a baby up for adoption, which Justice Amy Coney Barrett suggested reduced the need for abortions — an argument Rikelman dismissed as irrelevant to the core question at hand.
Justice Elena Kagan said specific legal and cultural changes were immaterial because the basic question of a person’s right to decide whether to continue a pregnancy remains the same as it was in 1973.
“In the end, we are in the same exact place as we were then, except that we’re not because there’s been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law, that this is part of the fabric of women’s existence in this country,” she said.
Is abortion fundamentally different than other rights? What else would be on the chopping block if Roe falls?
Abortion rights advocates warned that overruling Roe, and paying little deference to precedent, could lead to an upheaval in American law, lowering the bar for what it would take to reverse other momentous decisions.
Justice Sonia Sotomayor said that the high court’s 2015 Obergefell v. Hodges ruling upholding the right to same-sex marriage, and a ruling from the 1960s upholding a right to contraception, are among those that could be easily overruled — especially since the rights upheld in those decisions, like abortion, aren’t explicitly mentioned in the Constitution.
“They’re just as wrong, according to your theory,” Sotomayor told Stewart. “I just think you’re dissimillating when you say that any ruling here wouldn’t have an effect on those.”
The Mississippi solicitor general noted that Roe and Casey are different from other decisions because they remain controversial.
Stewart also asserted that abortion rights are different than any other under the law because it involves the “taking of a life.”
Abortion rights groups countered that overturning Roe would be radically different from overturning, say, precedents upholding segregation, because it involves a contraction rather than an expansion of individual rights.
Elsewhere in Wednesday’s arguments, conservative justices raised the question of the rights of the fetus itself and the need to balance them with the rights of the pregnant individual.
Fears of illegitimacy: How will the court’s decision impact the public’s already dim view of the institution?
Many players during Wednesday’s arguments appeared concerned that this case could exacerbate the public‘s perception that the court is politically motivated.
Liberal justices said the court ignoring abortion precedent based almost entirely on a change in its ideological makeup would severely damage its standing in American society, while conservative justices said the best way for the court to maintain its credibility with Americans of varying views on abortion was to return the issue to the states.
Kagan said it was important to “prevent people from thinking that this Court is a political institution that will go back and forth depending on what part of the public yells loudest and preventing people from thinking that the Court will go back and forth depending on changes to the Court’s membership.”
She added that many past moves by the court to overrule precedents were driven by a conclusion that they were based on some misunderstanding or new facts developed from experience.
“Not much has changed since Roe and Casey,” Kagan said. “People think it’s right or wrong based on the things that they have always thought it was right and wrong for.”
Justice Brett Kavanaugh suggested the tensions in the case — and the underlying trade-off between the life of a pregnant person and a fetus — call for returning such decisions to individual states.
“Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this? And there will be different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently,” Kavanaugh said.
In recent years, Roberts has appeared keen on preserving the court’s credibility by minimizing decisions that would stir controversy, but he said that may not always be the best approach.
“It is certainly true that we cannot base our decision on whether they are popular with the people,” said Roberts, before criticizing a portion of the Supreme Court’s precedent in Planned Parenthood v. Casey. “It seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent–sort of a super stare decisis, but it’s super stare decisis for what are regarded by many as the most erroneous decisions.”
Overturning Roe wouldn’t stop the abortion wars. It would ramp them up.
In pushing for the Supreme Court to limit abortion rights, conservative justices, lawyers and lawmakers asserted that a ruling upholding Mississippi’s 15-week ban or even overturning Roe v. Wade would tamp down the fights over the procedure that have roiled the country for decades.
Kavanaugh suggested that the court “should return to a position of neutrality on that contentious social issue rather than continuing to pick sides,” by which he meant abolishing Roe and allowing states to decide whether and how to ban abortion.
Sen. Bill Cassidy (R-La.) is among several GOP lawmakers echoing this sentiment, telling reporters on Capitol Hill earlier this week that “the Mississippi law actually has the ability to bring Americans together” because it splits the difference between people who want abortion banned entirely and those who want no restrictions on the procedure.
But advocates on both sides of the case made it clear that such a ruling would only inflame the ongoing battle. Many groups on the right are already pushing sweeping state-level bans in anticipation of Roe falling, while groups on the left say they would continue fighting for abortion access with whatever legal rights they have left at the state and federal levels.
Ryan Anderson, president of the conservative Ethics and Public Policy Center, stressed that that a decision overturning Roe v. Wade wouldn’t implement policies favored by social conservatives, just create opportunity to lobby for them.
“That’s not the end of the pro-life movement. That’s the beginning of the pro-life movement,” he said. “It’s an opportunity for pro-lifers at the political level to pass good laws.”
Rikelman said her firm and others “will not stop trying to fight for women’s ability to make this decision” and are preparing to use state and federal laws on privacy, gender equality and personal liberty to fight the expected wave of new bans. They and other groups are also pushing state and federal lawmakers to adopt abortion rights protections should Roe be overturned.