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  • Ryan Wittler

The Case Roe May Not Survive

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On Wednesday, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a case from Mississippi regarding a state law that bans abortion after 15 weeks of pregnancy.

Until now, each abortion ruling by the Court has upheld the standard set in the historic 1973 decision in Roe v. Wade: that women have a constitutional right to an abortion in the first two trimesters of a pregnancy, when the fetus cannot survive outside the womb (up until about 24 weeks).

However, after Wednesday, the Court’s conservative majority appears ready to get rid of Roe altogether, ushering in a new era of abortion restrictions in several states. We’ll give you the broad strokes from Wednesday and what to expect going forward.

Conservative majority holding firm, but divided:

During arguments, the Court’s six conservative justices made it fairly clear that they’re ready to overrule Roe, though there appeared to be two camps among them, according to NPR correspondent Nina Totenberg.

On one side, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch appeared ready to scrap Roe altogether (and maybe other cases based on a right to privacy, e.g., same-sex marriage), sticking to their view that the original text of the Constitution doesn’t provide abortion rights.

On the other, Chief Justice John Roberts and Justices Bret Kavanaugh and Amy Coney Barrett seemed willing to let the Mississippi law stand, but confine the ruling to only abortions.

Chief Justice Roberts attempted to placate the middle ground, pushing a view that lets the Mississippi law stand and preserves the right to an abortion earlier than 15 weeks.

Justice Kavanaugh pushed a stance of federal neutrality on the issue, asking why it shouldn’t be left to the states entirely, while Justice Barrett made it clear that she views adoption as an acceptable outcome of forcing a woman to carry an undesired pregnancy, arguing that the government has “[infringed] on bodily autonomy” in other ways, specifically citing vaccines.

Too political?

The Court’s three liberal members, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan pressed their colleagues to stick to precedent, with Breyer saying they “better be damn sure” before they toss out abortion decisions.

Sotomayor, in particular, called out the politics of the whole thing, noting the 15 justices who have previously found Roe to be good law, compared to the just four who have opposed it.

She also pointed out the fact that Mississippi specifically cited the Court’s new conservative majority as a reason for implementing the ban (since it believed it’s now more likely to win a challenge), leading her to question whether the institution itself could “survive the stench” in public perception that the Court is simply engaged in political acts.

What to expect:

We won’t pretend to be able to get inside the justices’ heads or their ability to persuade one another, though Wednesday still afforded some pretty clear hints that Roe is in danger.

Under a stronger chief justice, Roberts’s argument -- letting the law stand but still preserving the right to an abortion -- would probably gain traction, however, he and his center-right views are a minority among the five other conservative justices whose judicial philosophies push further right.

Still, every chief justice in the Court’s history has indeed held significant influence, so maybe Roberts will pull one out of his robe here and at least partially save a woman’s right to an abortion.

The Court’s decision is expected by summer.

Bagel HQ, Los Angeles, CA


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