As someone who has spent my career studying the history of abortion, I thought I knew what to expect tuning into Wednesday’s oral arguments in the Supreme Court abortion case, Dobbs v. Jackson Women’s Health Organization. It was clear that big changes were coming to U.S. abortion law, no matter what. The Mississippi law at issue bans abortion after 15 weeks of pregnancy, even though Roe v. Wade and Planned Parenthood v. Casey recognize a right to choose abortion significantly later in pregnancy. So if the court sides with Mississippi in this case — as it is widely expected to do — then American abortion rights will be fundamentally undermined.
The only real question is how the justices will rationalize their decision to side with Mississippi. And on that front, I fear I was wrong.
There are two likely scenarios for how this decision could go: The justices could throw out the so-called viability standard, which is the underpinning of abortion law today. (Viability is the point at which a fetus can survive outside the womb, or about 23 weeks of pregnancy.) Or they could do something much more radical and say — precedent be damned — there is no right to abortion in America at all.
After hearing arguments, I now believe that the justices will fully overturn Roe v. Wade when their decision comes down next year.
Until this morning, I thought that the second path was too treacherous for a Supreme Court with plummeting poll numbers. Many Americans believe that the Supreme Court, an institution that relies on respect and soft power for its legitimacy, is a partisan institution. Meanwhile, 2022 is an election year. And much of the confirmation hearings for Justices Amy Coney Barrett and Brett Kavanaugh turned on their respect for precedent.
I believed that the court would eventually overturn Roe— several of the justices were handpicked by former President Donald Trump to do just that — but before the Dobbs arguments, I didn’t think they would do it so quickly. I thought that the justices would give themselves time to soften the blow, to make their case to the American people while overhauling abortion rights and to defuse arguments that the justices are just partisans in robes.
What I heard Wednesday morning was not a court in which a majority was worried about backlash, but a court ready for revolutionary change. (The justice who expressed the most concern about backlash was Sonia Sotomayor, the court’s most vocal proponent of abortion rights, who seemed ready to write a barn-burning dissent.)
That’s not to say that the conservatives on the court will necessarily be unanimous. Chief Justice John Roberts did seem like he might want to avoid reversing Roe outright. And Justice Barrett’s position was not always easy to gauge — she may be the conservative vote most up for grabs. But for much of the arguments, Justice Barrett did seem to ready to reverse Roe. For instance, she repeatedly suggested that pregnant people had no need for abortion because they could simply put their children up for adoption.
It was Justice Kavanaugh’s comments that alarmed me the most on Wednesday. He appears to have bought into the idea that the Constitution is neutral on abortion, the suggestion being that doing so would be both better for the court’s legitimacy and be the only principled interpretation of the Constitution. “This court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life,” he said. The court once described fairness in the abortion debate as striking a balance between the state’s interest in protecting fetal life and pregnant people’s interest in autonomy and equality. Now, Justice Kavanaugh seemed to suggest on Wednesday, fairness means reversing Roe.
The rest of the justices behaved more or less as I expected.Justice Clarence Thomas asked questions that assumed the state had the power to punish women for their behavior during pregnancy. Justice Neil Gorsuch repeatedly suggested that there was no way for Mississippi to win unless Roewas gone. Justice Samuel Alito suggested that at the time the 14th Amendment was adopted, most states did not treat abortion as a protected right — meaning, he seemed to argue, that the right to abortion was not rooted in early American history.
There was no mistaking the message of Wednesday’s arguments: There will be a day when there is no longer a right to choose abortion in the United States, and it is coming soon.
Mary Ziegler, a law professor at Florida State University, is the author of “Abortion and the Law in America: Roe v. Wade to the Present.”
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