Years after former President Donald Trump vowed to only nominate Supreme Court justices that would eviscerate the right to abortion, his appointees look set to do just that.
Technically, the case argued before the Supreme Court on Wednesday, Dobbs v. Jackson Women’s Health, deals with a 2018 Mississippi law that would ban almost all abortions—with no exceptions for rape or incest—after 15 weeks of pregnancy. But within the opening minutes of arguments, it was clear that the cases that were really on trial were Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, and Planned Parenthood v. Casey, an abortion ruling that affirmed Roe in 1992.
Throughout the nearly two hours of arguments, the conservative justices repeatedly sounded dog whistles suggesting that they’d be interested in revisiting and undercutting those cases—a move that could reshape the legal right to abortion for millions of people.
“They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process,” Mississippi Solicitor General Scott Stewart said in his opening salvo. “For 50 years, they’ve kept this court at the center of a political battle that it can never resolve … This court should overrule Roe and Casey, and uphold the state’s law.”
It was an invitation that the 6-3 conservative majority eagerly explored while they discussed, if not totally overturning Roe and Casey, then at least erasing the so-called viability line, a legal standard that has blocked states from totally banning abortion ahead of fetal viability. That benchmark, typically dated to about 24 weeks of pregnancy, delineates when a fetus can survive outside the womb.
“Why would 15 weeks be an inappropriate line? Because viability, it seems to me, doesn’t have anything to do with choice,” said Chief Justice John Roberts, who was regarded as one of the potential swing votes in the case. “But if it really is an issue about choice, why is 15 weeks not enough time?”
Julie Rikelman, who represented Jackson Women’s Health Organization, the last abortion clinic left standing in Mississippi, pointed out to Roberts that Mississippi has also passed a six-week abortion ban.
“Without viability, there will be no stopping point,” she said. “States will rush to ban abortion at virtually any point in pregnancy.”
If the justices overturn Roe by June 2022, when a decision is expected, more than half of U.S. states would have no legal protections for abortion, according to an analysis by the Center for Reproductive Rights. Twelve states already have “trigger laws” on the books, which would ban all or almost all abortions as soon as Roe is overturned. Ultimately, just 13 states would end up serving as “destination states” for all U.S. abortion patients, since they’re both unlikely to ban the procedure and close to states that likely will, recent Guttmacher Institute research found.
Justice Amy Coney Barrett, the last Trump SCOTUS nominee to make it to the bench, pressed Rikelman on safe haven laws, which let people relinquish their children soon after birth. Those laws, she seemed to suggest, alleviate the need for the legal access to abortion.
“You, and many of your amici, focus on the ways in which forced parenting, forced motherhood would hinder women’s access to the workplace and to equal opportunities,” Barrett said. “Why don’t the safe haven laws take care of that problem?”
Like Roberts, Justice Neil Gorsuch, Trump’s first nominee, seemed focused on the possibility of erasing the viability line. He repeatedly asked if the justices could instruct lower courts to rely on other potential legal tests to evaluate the legality of abortion restrictions.
“I don’t think there’s any line that could be more principled than viability,” said U.S. Solicitor General Elizabeth Prelagor, who also argued against the Mississippi ban.
Rikelman and Prelagor repeatedly stressed the importance of respecting precedent and not overturning a case simply because some justices may now believe that it was wrong.
But simple respect for precedent wasn’t an argument that seemed to reverberate much with Justice Brett Kavanaugh, who listed numerous Supreme Court decisions that overturned prior rulings, including Brown v. Board of Education, Lawrence v. Texas, and Obergefell v. Hodges (which, respectively, eliminated racial segregation in schools, abolished sodomy laws, and established the right to same-sex marriage).
The soliloquy seemed aimed less at Rikelman and Prelagor than at his fellow justices, who may be wavering on whether overturning Roe would hack away at the Supreme Court’s legitimacy. Roberts, in particular, has signaled that he cares tremendously about the public’s view of the Supreme Court.
“If we think that the prior precedents are seriously wrong, why doesn’t the history of this court’s practice, with respect to those cases, tell us that the right answer is actually a return to the position of neutrality and not stick with those precedents?” Kavanaugh asked.
When the Supreme Court has overturned a past precedent, Rikelman replied, “The court has required something else, a special justification. And the state doesn't come forward with any special justification.”
She also rejected the idea that overturning Roe would return the Supreme Court to some mythical land of neutrality.
“Women have an equal right to liberty under the Constitution,” she said. “If they’re not able to make this decision, if states can take control of women’s bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the Constitution.”
If Roe is overturned, people on both sides of the abortion debate agree that it may only be the first domino. In a brief filed ahead of arguments, a group of 154 economists traced how legal access to abortion had reshaped life for American women, drawing on decades of research on the topic. Legalization led to a 28 to 40 percent fall in maternal mortality among Black women, they wrote. For women who had an unintended pregnancy but had access to abortion, it increased the chance tht they finish college and enter a profession by almost 20 and 40 percentage points, respectively.
A brief by Texas Right to Life, an anti-abortion group that set up a whistleblower website to target people who broke the Texas six-week ban, wrote that Roe’s demise would be a blow to “court-invented rights to homosexual behavior and same-sex marriage.”
At one point, Barrett shoehorned in totally different issue, by throwing out an opaque comment about changing abortion law that will likely prick up the ears of vaccine skeptics.
“There is, without question, an infringement on bodily autonomy, for which we have another context, like vaccines,” she said.
Stewart, however, tried to argue that because Roe and Casey exist in a unique area of law, the justices could overturn them without worrying about denting other pivotal cases. Justice Sonia Sotomayor, who dominated the questioning of Stewart, was deeply skeptical.
“I just think you’re dissimulating when you’re saying that any ruling here wouldn’t have an effect on those,” she said. “You think that no state is going to think otherwise? That no people in the population aren’t going to challenge those cases in court?”
“Your Honor, we’ll always have a diversity of views,” Stewart answered. “But I think—”
Sotomayor cut him off: “That’s the point.”
Just 30 days ago, the Supreme Court heard arguments over Texas’ recently enacted abortion ban, which blocks the procedure as early as six weeks into pregnancy. The Texas ban offers a window into what a post-Roe United States may look like: After the ban went into effect on Sept. 1, the number of legal abortions performed in Texas in September dropped by about 50 percent compared to the same month in 2020, a research group from the University of Texas, Austin found. But that doesn’t meant that abortions aren’t happening—they’re likely just getting outsourced to overwhelmed clinics in other states.
Abortion clinics across the nation told VICE News, since the Texas ban went into in effect, they’ve seen a spike in Texan patients. Texans are now forced to drive an average of 247 miles, each way, to obtain abortions, according to research by the Guttmacher Institute, which tracks abortion restrictions.
The Supreme Court has not yet ruled on the case, though a 5-4 majority of the Court had previously decided to let the Texas ban take effect.