The arguments in today’s Mississippi abortion case pretty much sealed the deal. Roe as we have known it is dead. And there’s an excellent chance that it will be dead altogether:
The right to an abortion in the United States appeared to be on shaky ground as a divided Supreme Court heard arguments Wednesday on the fate of Roe v. Wade, the court’s 1973 decision that legalized abortion in the United States.
At issue in Wednesday’s case — Dobbs v. Jackson Women’s Health Organization — was a Mississippi law that bans abortion after 15 weeks. Until now, all the court’s abortion decisions have upheld Roe’s central framework — that women have a constitutional right to an abortion in the first two trimesters of pregnancy, when a fetus is unable to survive outside the womb, roughly between 22 and 24 weeks. But Mississippi asked the Supreme Court to reverse all of its prior abortion decisions and to return the abortion question to the states.
The court’s three newest justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, appeared to signal they are ready to side with Mississippi — but it wasn’t immediately clear if all of them would strike down Roe, as the state of Mississippi had asked.
Summarizing Mississippi’s argument, Justice Kavanaugh said: “They say the Constitution doesn’t give us the authority, we should leave it to the states and we should be scrupulously neutral.”
Chief Justice John Roberts, a fellow conservative, focused on the argument of fetal viability.
“Why would 15 weeks be an inappropriate line? Viability, it seems to me, doesn’t have anything to do with choice, but if it really is an issue about choice, why is 15 weeks not enough time?” he asked Julie Rikelman, who represented the abortion clinic bringing the case.
Rikelman replied: “If the court were to move the line substantially backwards and 15 weeks is 9 weeks before viability, your honor, it may need to reconsider the rules around regulations because if it’s cutting the time period to obtain an abortion roughly in half, then those barriers are going to be much more important.”
The court’s liberals suggested overturning Roe would make the court appear political.
“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” Justice Sonia Sotomayor asked Mississippi Solicitor General Scott Stewart.
Kavanaugh and Barrett seemed downright eager:
Perhaps the most surprising aspect of the morning was how little Justices Brett Kavanaugh and Amy Coney Barrett concealed their desire to overrule Roe. While Chief Justice John Roberts fruitlessly sought out a compromise, Kavanaugh and Barrett showed their cards: Both justices believe the court has an obligation to let states (or Congress) decide the abortion question. Neither showed any appetite for incremental steps or half-measures. They are eager to greenlight complete bans on all forms of abortion at every stage of pregnancy. And they are ready to do it now.
Remember this?
I’m sure she’s very concerned.