If there is a white whale in the conservative legal movement, an animating force behind the rise of the Federalist Society and a host of Supreme Court nomination fights, it is the prospect of a future without Roe v. Wade. For nearly 50 years, that landmark decision has enshrined into law a woman’s right to end her pregnancy, which the Supreme Court reaffirmed must be respected without state interference before the line of fetal viability, around 23 or 24 weeks. That principle—Roe’s “essential holding,” in the words of the court—remains broadly popular with the general public, even as the ruling’s fate is now in the hands of a conservative-majority court.
Through the decades, Roe engendered the ascension of a legal brain trust, central to Republican politics and administrations, that the ruling was not, in fact or in law, correctly decided, and that it is the Supreme Court’s solemn duty to reverse course on a constitutional right not explicitly addressed in the Constitution. From that brain trust, which gave us the Reagan revolution and William Barr and a number of today’s never-Trump Republicans, emerged John Roberts, the nation’s chief justice and a longtime soldier in the anti-Roe crusade. And at long last, he and his other conservative colleagues on the Supreme Court have the votes, unrestricted by the Anthony Kennedys or David Souters, to overturn Roe.
That much was clear on Wednesday, as the justices heard nearly two hours of oral argument in Dobbs v. Jackson Women’s Health Organization, a case that squarely presents them with the question of whether Roe should be uprooted from American law. The ruling, which is expected in June, could uphold a 15-week abortion ban in Mississippi while weakening Roe—or else overturn it completely, opening the door to nearly half the country eventually outlawing the procedure.
As if conscious of this captive, receptive audience, Scott Stewart, the Mississippi solicitor general, didn’t hide the ball the moment he opened his mouth at the start of Wednesday’s session. The cases enshrining a right to an abortion “have no basis in the Constitution,” he told the justices. “They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.”
To be clear: The Supreme Court should’ve never heard this case. The appeals court that first heard it, the extremely conservative U.S. Court of Appeals for the Fifth Circuit, had simply applied the settled law of abortion and determined that Mississippi couldn’t enact a 15-week ban, which flouts the fetal viability line that has existed since Roe and later precedents affirming it. Even Judge James C. Ho, a Trump-appointed conservative who has denounced abortion as a “moral tragedy” in the past, threw up his hands: “A good faith reading of those precedents requires us to affirm,” he wrote in 2019. Reflecting on the Supreme Court’s interest in this new attack on Roe out of Mississippi, veteran reporter Linda Greenhouse recently told an interviewer, “No previous court would have done that.” That being agreeing to hear this case.
But this is not our parents’ Supreme Court, which 30 years ago, with three Republican appointees in the lead, made it clear that Roe remains the law of the land. Since the arrival of Amy Coney Barrett last year, it is not even Roberts’s court. The court that bears his name is now just that—a nominal formality, as the chief can neither control nor persuade the four horsemen to his right, who now have the power to hear whatever case they’d like plus one additional vote, Barrett’s, to shape the law in their image. Not that Barrett’s views on abortion were a secret, but on Wednesday she was remarkably candid in suggesting that “forced parenting” and “forced motherhood,” which Roe sought to prevent, may no longer be an issue today, as all 50 states have safe haven laws in the books where people who are made to have children they don’t want can simply give them up.
Mississippi, it should be noted, hadn’t asked the Supreme Court to overturn Roe v. Wade or Planned Parenthood v. Casey, the 1992 benchmark that affirmed it, and the justices later only agreed to consider whether “all pre-viability” abortion bans were unconstitutional. But the state swung for the fences anyway. The line of “viability,” or when a fetus may survive outside the womb, was one the justices returned to over and over on Wednesday—it is the kind of bright-line rule that, in the law, should give the justices peace and comfort because it is determinate. And it’s been the law for decades. But the conservative justices, including Barrett and Roberts, no longer seem interested in viability as an appropriate, dividing line. “What is the philosophical argument, the secular philosophical argument for saying this is the appropriate line?” asked Justice Samuel Alito. Crediting the arguments of abortion opponents, Brett Kavanaugh, for his part, spoke loftily of how the Supreme Court “should be scrupulously neutral on the question of abortion.” As in, who are we to draw a line in the first place? A right so fundamental for women, he seemed to say, should be at the mercy of state legislators and Congress. (Someone dial Susan Collins.)
Julie Rikelman, the lawyer for the abortion clinic standing up for Roe, was unflappable during her presentation, and she repeatedly pushed the point that viability should remain the dividing line for abortion rights, because “it’s objectively verifiable and doesn’t require the court to resolve the philosophical issues at stake”—such as when life begins and other knotty problems that judges simply are ill-equipped to resolve. And then there’s the hard, cold reality that there’s no better option. If a 15-week ban survives without a viability line, after all, who’s to say that a 12-week ban or an 8-week ban won’t. As it happens, Wednesday’s argument took place three months since Texas all but outlawed abortion within its borders, and a laissez-faire Supreme Court has yet to issue a ruling in that separate set of cases.