On December 1, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization. At issue is the constitutionality of a Mississippi law that bans abortion after 15 weeks of pregnancy. Judging by the media reaction, things did not go well for the pro-choice side. “The Supreme Court Seems Poised to Overturn Roe v. Wade,” reads one Bloomberg headline. “‘Roe’ is dead. The Roberts Court’s ‘stench’ will live forever,” reads the title of a Washington Post column. The headline of another Washington Post article puts it this way: “The question is not whether ‘Roe v. Wade’ is overturned — but how.” Pro-lifers hope so.
I remain unconvinced. It’s never a good idea to infer a final ruling from the content of oral argument. In March 2012 everyone walked away from arguments in NFIB v. Sebelius, judging the constitutionality of Obamacare, assuming that the health-care law was doomed. They underestimated Chief Justice John Roberts’s creativity. The same thing could happen in Dobbs: Roberts may use his smarts and guile to persuade other Republican appointees that the Mississippi law can stand without overturning the right to an abortion in Roe. Such a ruling would be illogical. It would be a jurisprudential mess. It would further aggrandize the Court’s power to decide when and under what circumstances abortion is legal. It would look, in other words, like plenty of other Supreme Court decisions.
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