I agree with what is turning out to be the consensus, that it looks like at least five justices are skeptical of the holding in Roe and Casey. It looks like Chief Justice Roberts wanted a half-loaf solution of upholding Mississippi's law without overturning Casey and Roe, but everyone made it difficult for him.
One interesting thing to note is that progressives have changed some of their worldview since Roe and Casey were decided and that was reflected in the rulings and in arguments today. The argument for Roe was grounded in a right to privacy. The argument for Casey was grounded in personal autonomy. I thought it was savvy of Rikelman and Prelogar to not only defend the logic of Casey but to constantly push forward to what progressives now see as the proper grounding for abortion rights which they now see as equality under the law. At the most basic level, they argue that women need the right to abortion because they must be equally free for market labor.
I found the arguments slightly odd however. Rikelman and Prelogar referred constantly to the idea of “forcing” women to remain pregnant, which implies that the unavailability of abortion is a form of constant coercion. I find this a deeply strange way to talk about the human body. One is pregnant, and remains pregnant because that is the nature of the biological process at work.
My takeaway: we were never going to get the satisfaction today of feeling that the outcome was in the bag. No big case ever delivers that at argument. Now, we wait until late June, and of course, we hope nothing happens to the Justices in the interim. But it is hard to see how pro-lifers could be more optimistic about how this argument went. Rikelman and Prelogar gave the Court no basis on which to rule against them without overruling Roe and Casey. That strikes me as terrible strategy, but also the consequence of how the pro-choice movement has reasoned itself into a corner in which compromise is, so to speak, inconceivable. That intransigence could make it easier for the Justices to conclude that there really is no alternative way to avoid the all-or-nothing choice.
Kavanaugh, seen as the swing vote, hammered away at the point that getting the Court out of abortion is the neutral, small-d democratic middle ground. That is very encouraging. Alito pinned down some key concessions. Roberts was uninterested in sending the case back – nobody bothered to push for that – and gave off some real signs of being uncomfortable with the current framework. Neither Barrett nor Gorsuch seemed particularly sympathetic to keeping Roe, although Barrett was very interested in teasing out the proper way of handling stare decisis. The three liberals sounded like people who expect to lose, and in Breyer's case, sounded almost elegiac notes for his view of the Court.
We've had the football pulled away from us before in big cases, so take all of that with a grain of salt. But if you envisioned the Court finally overturning Roe, this is about how you'd have expected the argument to go.
In response to Barrett's question about safe haven laws, Prelogar said that being able to terminate parental rights is not enough to satisfy women’s right to autonomy. They must be able to “terminate pregnancy.” The right, in other words, is not a right to avoid parenthood or even to end pregnancy — which could be done without performing an abortion and killing the unborn child — but rather to end the life of an unborn child.
Overall assessment:
1. Chief seems to be searching for ruling that would reject viability line, which Casey called “central holding” of Roe. But what would he substitute in its place?
2. Court showed no interest in dismissing case. Chief affirmatively rejected that possibility.
3. Nothing problematic from Thomas, Alito, Gorsuch, Kavanaugh, or Barrett. Gorsuch in particular seemed to dismiss possibility of middle-ground ruling.
Stewart's closing wraps his case for overturning precedent squarely in Brown v. Board of Education. 58 years vs 48.
Stewart's rebuttal:
1. Safe-haven laws first came into existence in 1999, are now ubiquitous. They relieve burden of parenting.
2. Contraception is much more widely available now. Much cheaper than abortion.
3. Court needs to be “scrupulously neutral” (citing Kavanaugh's phrase).
4. It took 58 years to overturn Plessy. It's been nearly 50 years since Roe. Time to overrule.
Stewart argues that contraception is cheaper and more available today than in 1973 or 1992, and compares that to the cost and time of abortion at this facility. In other words, abortion is more expensive than contraception.
That really should not be the basis of the decision, but it does show why Sotomayor's argument really should not mandate the outcome.
I don't want to read too much into oral argument, but all of Justice Kavanaugh's questions have indicated a recognition that matter of abortion should be restored to states.
SG: “I don't think there's any line that could be more principled than viability,” which of course is (no matter how you spin it) a concession that the rigid trimester framework of Roe was not so principled. But it also represents the continuing refusal to give the Court any middle ground to preserve any part of Roe/Casey rather than all-or-nothing.
In a way, this is our entire current political system in miniature: both sides are swinging for the fences.
The other side keeps conceding there are no grounds for a half-baked decision.