Oral arguments suggest a majority of the Court understands that the 1973 ruling is bad law. The question is whether they have the courage to act on that.
T he Supreme Court heard arguments Wednesday morning in Dobbs v. Jackson Women’s Health Organization. The case will decide the fate of Mississippi’s ban on abortion after 15 weeks of pregnancy, and perhaps, the fate of Roe v. Wade and the life or death of millions of Americans yet to be conceived. A decision is unlikely before the end of June. Veterans of Supreme Court cases past know that it is risky to read the tea leaves from questions at argument, but it is hard to see how the argument could have gone much better for the pro-life cause. Now, we wait to see if the Justices have the fortitude to do the right thing, end 48 years of judicial usurpation, and restore the primacy of the Constitution.
The lawyers for the abortion clinic and for the Biden administration insisted on an all-or-nothing outcome, giving the Court no alternative path to uphold the Mississippi law without overruling Roe. Every effort by Chief Justice John Roberts to find some potential compromise standard was rebuffed. That is a risky strategy when the likeliest way to disappoint pro-lifers is the Court’s incrementalists preferring to bend rather than break Roe, but it reflects the calcified, uncompromising extremism of the pro-choice movement.
Nobody seriously defended Roe as a correct reading of the Constitution. Its defenders instead circled the wagons around the institutional importance of adhering to past precedents. Justice Breyer, sounding very much like a man who expected to end up on the losing side of the case, thundered about the Court’s institutional need to avoid revisiting past decisions even if seriously erroneous. Justice Sonia Sotomayor suggested, implausibly, that a decision overturning a longstanding precedent could lead to the Court throwing out Marbury v. Madison and discarding the Second Amendment — even though she herself has already voted to overturn D.C. v. Heller. These same arguments could have been made for keeping the pro-segregation Plessy v. Ferguson decision 58 years later in Brown v. Board of Education.
Mississippi solicitor general Scott Stewart and Justices Samuel Alito and Brett Kavanaugh made the Plessy parallels explicit. In one of the most telling exchanges, Alito forced the solicitor general to concede that it would have been proper to overturn Plessy on the basis that it was wrongly decided at the time, without having to show that circumstances had changed in order to overturn a past decision. The fact that this was a concession speaks volumes about the pro-Roe arguments. So does the fact that Julie Rikelman, the abortion clinic’s lawyer, felt compelled to misrepresent American legal history as well as current European law.
Justice Kavanaugh, regarded as the potential swing vote, stressed how often the Court has jettisoned prior precedents, and returned again and again to the theme that getting the Court out of abortion is the “scrupulously neutral,” small-d democratic middle ground. Roberts correctly compared Roe to the abortion regimes of China and North Korea and noted that it should be concerning to find ourselves in that company. Justice Amy Coney Barrett, who has given birth to five children and adopted two more, pushed back against the notion that women are forced to be parents, given the option to give up a child for adoption. None of them seemed particularly impressed by the answers to their questions.
A majority of the Court appears to understand that Roe is bad law. What remains to be seen is whether they have the courage to act on that.