The Supreme Court is deciding whether to end Roe v. Wade

Justices seem to backtrack at oral arguments

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Roe hangs in the balance 

The Supreme Court is now weighing the most consequential abortion case in decades, a challenge to a Mississippi law that bans abortions after 15 weeks of pregnancy.

The law would effectively end Roe v. Wade for most women in the state.

Many states are ready to pass similar laws if this is upheld (more on that below).

So the stakes are high. The recent oral arguments offered clues on where the court may be headed. 

A reversal… in denial? 

Chief Justice Roberts asked questions suggesting Roe could be gutted, while the court claims “not to overrule” it: 

“Viability.. doesn't have anything to do with choice, but if it really is an issue about choice, why is 15 weeks not enough time?”

This is a nod towards a ruling restricting the practical access to abortion, while claiming some abortion is still legal.

Demonstrators on both sides of the abortion issue gathered outside of the Supreme Court as they heard oral arguments on December 1. c/o Chip Somodevilla/Getty Images

The newest member of the Court, Trump appointee Amy Coney Barrett, questioned one of the legal precedents in Roe — that the government may not “burden” women with laws that dictate their free choices and future, such as compelling them to bear and raise a child. 

In a question, Barrett suggested that since women can legally give up a child for adoption, that may undercut the “burden” rational in the precedent. Given the intense demands of pregnancy, and the immense personal stakes of deciding whether to raise a child or not, this seemed like a far-fetched effort to find any argument for ending Roe. 

Another controversial Trump appointee, Brett Kavanaugh, gave away the game in his questioning — which is striking because with more discipline, he could have avoided going down this road.

After insisting in his confirmation hearings (under oath) that Roe was a settled precedent, and stronger than other precedents because it was reaffirmed, Kavanaugh walked it all back at these oral arguments. 

Justice Brett Kavanaugh in 2018. c/o Chip Somodevilla/Getty Images

Keep in mind, this is during the limited time to ask lawyers questions for the record and ultimate decision, but Kavanaugh seized the stage to possibly “prebut” criticisms of hypocrisy if he votes to overturn Roe:

“You think about some of the most important cases — the most consequential cases in this court's history — There's a string of them where the cases overruled precedent. If the court in those cases had listened… the country would be a much different place.”

He cited times where the Court did overturn a precedent in ways that history judged correctly — like ending racist rulings about slavery and segregation. 

The statement is more of a “tell” than an insight. In law, everyone knows some precedents can be overturned — that’s why the Supreme Court is more important than all other courts — the issue here is he just swore he viewed Roe as a settled case (and thus not like those other examples). 

What are we talking about?

In law school, professors emphasize the court is not just a place for personal opinions or political bartering. It is designed, and supposed to function, differently than the other branches of government. 

And there are many cases where it does; through unanimous rulings, or justices ruling against the party they were aligned with, or other unconventional outcomes that suggest evidence and doctrine can matter more than just power and politics. But on major, socially divisive cases like this, the Court edges closer to a political actor. And while there may be ways that can apply to justices appointed from both parties, in this case, given the formal role of precedent, it is the Republican-appointed members of the court who look ready to seize the power from the court’s changing composition to exert their political will.

In other words, the facts and logic have not changed, but the judges have. Trump got three new ones in (boosted by Mitch McConnell’s hijacking) and they’re going to change the law because they can. That’s the concern of many legal experts — and a member of the court. Here’s how Justice Sotomayor put it, in unusually frank remarks during her section of questioning:

“The sponsors of this bill, the House bill in Mississippi, said, ‘we're doing it because we have new justices.’

Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts? I don't see how it is possible.

She may be appealing to Roberts as an institutionalist. Or to any other new member who might give thought to those type of concerns, and not just their own view of a chance to roll back 50 years of law in this area.

Justice Sonia Sotomayor in 2019. c/o Paul Marotta/Getty Images

Here’s what happens next. 

The justices have to privately discuss what they will do. Will they explicitly overturn Roe and abortion rights? Or will they uphold this early ban on abortion, while claiming some rights still exist under law?

Or—though it appears unlikely from the oral arguments—will they strike the Mississippi law down in full?

A ruling for Mississippi will green-light a national crackdown on abortions. Over 20 states are already preparing to pass Mississippi-style laws if the court green-lights it.

As for the potential hypocrisy at play, here’s how New York Times Magazine legal journalist Emily Bazelon puts it:

“It can matter to the public. It doesn't matter in terms of what they are allowed to do. They get to count to five.”

That it matters to the public could count for something, though. Most Americans now see Roe v. Wade as a legitimate ruling that should stand (58%). The portion of the public that backs overturning Roe at this time, amidst other progress on gender equality and this long-standing legal framework for abortions, is much smaller. At 32%, it does not include all conservatives or Trump supporters.

The public does not have a vote in this, but they may have a major say in what happens if the court does revive political and electoral clashes over abortion across all 50 states.