If there is a white whale in the conservative legal movement, an animating force behind the emergence of the Federalist Society and a host of Supreme Court nomination battles, it is the prospect of a future without Roe v. Wade. For nearly 50 years, this landmark decision has enshrined in law a woman’s right to terminate her pregnancy, which the Supreme Court confirmed must be respected without state intervention within the bounds of fetal viability, around 23 or 24 weeks. That principle –Roe‘s “substantial possession”, in the words of the court – remains widely popular among the general public, although the fate of the ruling is now in the hands of a court with a conservative majority.
Through the decades, Roe gave rise to the rise of a legal brain trust, central to Republican politics and administrations, that the ruling was not, in fact or in law, correctly decided, and that it is the Supreme Court’s solemn duty to reverse the course of a constitutional right not explicitly enshrined in the Constitution. From the brain trust that gave us the Reagan Revolution and William Barr and a number of today’s never-Trump Republicans, showed up John Roberts, the nation’s supreme judge and a longtime soldier in the anti-Roe crusade. And at long last, he and his other Conservative colleagues in the Supreme Court have the votes, unlimited of Anthony Kennedys or David Souters, to topple Roe.
So much was clear on Wednesday when the judges heard nearly two hours of oral argument in Dobbs v. Jackson Women’s Health Organization, a case that even presents them with the question of whether Roe should be moved out of US law. The decision, expected in June, could maintain a 15-week abortion ban in Mississippi while weakening Roeotherwise it will topple completely and open the door to almost half of the country, which will eventually ban the procedure.
As if one were aware of this captivated, receptive audience, Scott Stewart, The Mississippi attorney did not hide the ball the moment he opened his mouth at the beginning of Wednesday’s session. The cases, which establish a right to abortion, “have no basis in the constitution,” he told the judges. “They have no home in our history or traditions. They have damaged the democratic process. They have poisoned the law. They have strangled a compromise. For 50 years, they have kept this court at the center of a political struggle that it can never resolve. And 50 years later, they stand alone. Nowhere else does this court recognize the right to end a human life. “
To be clear: the Supreme Court should have never heard this case. The appellate court that first heard it, the extremely conservative U.S. Court of Appeals for the Fifth Circuit, had simply applied the established abortion law and ruled that the Mississippi could not pass a 15-week ban, overriding the fetal viability limit that has existed since Roe and later precedents that confirm it. Even judge James C. Ho, a Trump-appointed conservative who has previously condemned abortion as a “moral tragedy” shook hands: “A good faith reading of these precedents requires us to confirm,” he wrote in 2019. Reflecting on the Supreme Court’s interest in this new attack on Roe out of Mississippi, veteran reporter Linda Greenhouse said recently to an interviewer: “No previous court would have done that.” To agrees to deal with this matter.
But it is not our parents’ supreme court that, 30 years ago with three Republican nominees at the helm, made it clear that Roe remains the law of the land. Since the arrival of Amy Coney Barrett last year, it’s not even Roberts’ court. The court bearing his name is now just that – a nominal formality, as the chief can neither control nor persuade the four riders to his right, who now have the power to hear whatever case they want plus an extra vote, Barretts, to shape the law in their image. Not that Barrett’s views on abortion were a secret, but on Wednesday she was remarkably outspoken in suggesting that “forced parenthood” and “forced motherhood”, as Roe tried to prevent is perhaps no longer a problem today as all 50 states have free port laws in the books where people created to have children they do not want can simply give them up.
Mississippi, it should be noted, had not asked the Supreme Court to overthrow Roe v. Wade or Planned Parenthood v. Casey, benchmark from 1992, which confirmed it, and the judges later only agreed to consider whether abortion bans “all prior viability” were unconstitutional. But the state still swung after the fences. The line of “viability”, or when a fetus can survive outside the womb, was one of the judges returned to again and again on Wednesday – these are the kind of clear line rules that in law must give judges peace and comfort because it is determined. And that has been the law for decades. But conservative judges, including Barrett and Roberts, no longer seem to be interested in viability as an appropriate dividing line. “What is the philosophical argument, the secular philosophical argument for saying this is the appropriate line?” asked Justice Samuel Alito. Accepts the arguments of the abortion opponents, Brett Kavanaugh, for its part spoke loudly about how the Supreme Court “should be strictly neutral on the issue of abortion.” As in, who are we to draw a line in the first place? A right so fundamental to women, he seemed to say, should be at the mercy of state legislators and Congress. (Someone is calling Susan Collins.)