The Supreme Court on Wednesday heard a Mississippi case that could overturn Roe v. Wade. After almost two hours of oral argument, it’s clear that the fate of nationwide legal abortion is now in the hands of Justice Amy Coney Barrett. That’s not good news for the future of abortion rights.
The case argued today involved a ban on abortion at 15 weeks of pregnancy. Roe and subsequent Supreme Court cases had been entirely clear that states could not ban abortion before “viability,” a medical term indicating when a fetus has developed enough that it could survive outside a woman on its own (though with extraordinary medical intervention). For most pregnancies, that’s about 23 or 24 weeks.
Because Mississippi’s ban at 15 weeks was a full two months before viability, the lower courts that assessed the law all said it was clearly unconstitutional. This includes the Fifth Circuit, the rabidly conservative and anti-abortion federal appeals court that covers Mississippi. Even that court, which has repeatedly batted away challenges to Texas’s SB 8 and allowed it to go into effect, said Mississippi’s law was unconstitutional under current Supreme Court law.
Mississippi’s only hope was to get the Supreme Court to change the law of abortion under the Constitution. So today, Mississippi asked the court to overturn its abortion precedent. Originally, the state asked the court just to allow it to have a 15-week ban. However, once Justice Ruth Bader Ginsburg died and was replaced by Justice Barrett, Mississippi changed its tune and asked the court to go even further and overturn Roe entirely.
At today’s oral argument, it was eminently clear that Mississippi is going to win. Barring a major surprise, all six conservative justices are going to vote that Mississippi’s law is constitutional. Their questions today indicated that, at a minimum, they are comfortable allowing a state to reduce the period of time someone has to choose to have an abortion by two months.
The only big question that seems to remain after today’s argument is how many of those six justices are going to go even further and rule that not only is a 15-week ban constitutional, but that a complete ban would be constitutional as well. And here’s where we have to do what constitutional lawyers and law professors know is the only real principle of Supreme Court law — how to count to five. Because five is the way to a majority ruling that has the force of law on a nine-member court.
So what do we know about the six conservatives after today’s argument? Chief Justice John Roberts repeatedly asked questions showing that he thought Roe’s viability line was not supported by the Constitution and that a 15-week ban would be a perfectly fine line to draw. He did not seem to indicate he wanted to get rid of Roe entirely.
But he seemed alone in that regard. Predictably, the court’s most conservative justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — all made basically the same argument that there is nothing in the Constitution that protects a right to abortion. Justice Brett Kavanaugh joined them, focusing much of his time arguing that the Constitution is neutral on abortion and that states and Congress are free to legislate on the topic however they want. (Dear Sen. Susan Collins, you were either lying to us when you said Kavanaugh considered Roe to be settled law or he was lying to you. Let us know which it was.) As he repeatedly said in his questions, courts must stay out of this complex and divisive issue and leave any decisions about abortion to the democratic process.
That’s four votes (Thomas, Alito, Gorsuch, and likely Kavanaugh) to completely overturn Roe and one (Roberts) to limit abortion to 15 weeks, leaving Justice Barrett. Will she join the chief justice in the more-limited ruling or the four others in overturning Roe? Her questions today indicated that she will probably go with the four in getting rid of Roe entirely. She wasn’t as explicit about it as the others, but after initially asking a question about whether overturning Roe would threaten other precedent, she then repeatedly asked about safe-haven laws and how those change the issue. Safe-haven laws are laws that say there’s no criminal penalty for giving up a newborn by anonymously dropping the child off at a police or fire station within a day or two of birth. To Justice Barrett, because women can give up their newborns without any penalty, carrying a pregnancy to term is not too burdensome because they can then go about their lives without being parents.
Barrett didn’t seem at all concerned about the emotional and physical toll nine months of pregnancy takes on someone’s body. Since safe-haven laws — and more generally, the ability to give a child up for adoption — mean, according to Barrett, women won’t be forced to be parents against their will, she was indicating she had no problem with a ban on abortion. And key to the question of whether she would join the chief justice or the other four conservatives, her argument about the importance of safe-haven laws doesn’t change whether the ban on abortion is a complete one or only at fifteen weeks.
In other words, because adoption is available and women can give up their children without penalty, Barrett seems poised to vote with the other four conservatives in overruling Roe entirely and not adopting the chief’s half-measure solution.
Nothing is set in stone until the decision is announced to the public (likely at the end of June), but the writing is on the wall, today clearer than ever before, that Roe is going to be overturned. And after today’s oral argument, everyone needs to start preparing themselves for a country where over half its states ban abortion.