Supreme Court: Roe Is About to Go

Today the Supreme Court is hearing arguments in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion law case. Mark Joseph Stern reports for Slate:

Give this to the Supreme Court: It did not leave us in suspense. During oral arguments on Wednesday in Dobbs v. Jackson Women’s Health Organization, five Republican-appointed justices made it abundantly clear that they are prepared to abolish the constitutional right to abortion established nearly 50 years ago in Roe v. Wade. Perhaps the most surprising aspect of the morning was how little Justices Brett Kavanaugh and Amy Coney Barrett concealed their desire to overrule Roe. While Chief Justice John Roberts fruitlessly sought out a compromise, Kavanaugh and Barrett showed their cards: Both justices believe the court has an obligation to let states (or Congress) decide the abortion question. Neither showed any appetite for incremental steps or half-measures. They are eager to greenlight complete bans on all forms of abortion at every stage of pregnancy. And they are ready to do it now.

Anti-abortion fanatics don’t know the meaning of “compromise.”

Regarding the Mississippi case, I wrote a few months ago,

Dobbs simply puts a gestational limit on elective abortion at 15 weeks. The Roe v. Wade guidelines allow states to ban elective abortions, but not before the gestational age at which a fetus might be viable (then as now, 23 weeks). After that, the states must provide exceptions for “life and health of the mother,” and physicians had some discretion about what that meant.

There is a little fudging in the medical literature about the 23-week threshold for viability, but 15 weeks is way outside fudging range. As I understand it, if the Court allows the 15-week limit to stand, Roe is overturned. And if Roe is overturned, a whole lot of states will ban all or most abortions overnight. It may be that the justices could uphold the 15-week ban but include language in their decisions that salvages some parts of Roe, but I wouldn’t expect them to do that.

SCOTUS doesn’t necessarily have to specifically proclaim that Roe is overturned. The Roe decision argued that the state’s interest in protecting a fetus doesn’t begin until the fetus reaches a gestational age at which it might survive outside the womb. Then as now, this is generally considered to be after 24 weeks. And, of course, Roe gives physicians broad discretion to terminate pregnancies after that time to preserve “the life and health of the mother.” If states can reset the point at which elective abortions can be banned at any point in pregnancy, Roe is effectively overturned even if nobody says so. And right-wing politicians of late have shown they don’t give a hoo-haw about the life and health of the mother and are perfectly happy to let women die in the name of “life.”

Kavanaugh, Barrett, Alito, and Thomas, IMO, are nothing but right-wing political hacks; Gorsuch and Roberts aren’t much of an improvement. I’m giving Gorsuch a bit of a break only because of McGirt v. Oklahoma. Roberts is no friend of abortion rights, but he seems to understand that striking down Roe v. Wade would stir up a backlash that could damage the Court and the Republican Party.

Mark Joseph Stern wrote that Roberts repeatedly argued that the Court might simply allow states more flexibility to determine when elective abortions could be banned but leave in place some constitutional protection for abortion. Stern continued,

But Roberts had no takers. This fact became clear when Kavanaugh asked Mississippi Solicitor General Scott Stewart an absurd question: “To be clear, you’re not arguing that the court somehow has the authority to itself prohibit abortion?” Of course, no partyasked SCOTUS to ban abortion, and few seriously claim that the Constitution disallows abortion. Asking such a ridiculous question allowed Kavanaugh to frame overruling Roe as the true compromise in a comment aimed at the public rather than anyone in the courtroom. “The Constitution’s neither pro-life or pro-choice on the question of abortion,” he said, “but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.” He added that if Roe goes, some states “would continue to freely allow abortion.” (At points, Kavanaugh did not even pretend to frame these thoughts as a question rather than a comment.)

So, yeah, the right-wing hacks on the Court are most likely going to toss out the gestational age rule and let states do what they want.

See also Amy Coney Barrett Suggests Forced Pregnancy Is Fine Because of Adoption at Daily Beast. Ghastly. As Paul Waldman wrote today, the only question about the eventual decision is whether the Mississippi law will be upheld by five votes, or six.

Eugene Robinson wrote,

Roe v. Wade is an important piece of the duct tape that holds this fractious nation together, and it would be a grievous error for the antiabortion majority on the Supreme Court to rip it away. …

… Like all of our constitutionally protected freedoms, the right to choose can be restricted, but not taken away. That has been the status quo for nearly five decades, and the nation has muddled through. But if Roe is reversed — if the court rules, as its most conservative justices have argued, that no protected right to reproductive choice exists — then the political cold war over abortion will flare immediately into a roaring blaze.

Given that the justices plan to be in recess from July through September, we’ll probably get the decision in May or June. Expect the conflagration to consume the midterm election campaigns. Most not-right-wing editorialists think the backlash will hit the Republican Party a lot harder than its members seem to anticipate now.

See also Alexandra Petri, Woman savoring last few hours before getting turned back into vessel.

And do watch this segment from last night’s All In With Chris Hayes. In brief, Sen. Chris Murphy has had it with Republicans who like to praise “the sanctity of life” but won’t do anything about school shootings. “I’m at my wits end about why Republicans’ concern for life seems so limited when the choices we could make to try to protect our kids are so obvious, are so politically popular, are so possible.”

Abortion rights advocates and anti-abortion protesters demonstrate in front of the US Supreme Court in Washington, DC, on December 1, 2021. (Photo by OLIVIER DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)

7 thoughts on “Supreme Court: Roe Is About to Go

  1. Here's the money question, coming from Justice Sonia Sotomayor:  'Will this institution (the SCOTUS) survive the stench this creates in the public perception that the Constitution and its reading are just political acts?  I don't see how that is possible."

    I don't see how either.

    I know my respect for the SCOTUS as an institution has declined with every passing decade.  Right now, you're not arbiters who are on this court, Judge Roberts.  You are revolutionaries.

    There's a miasmatic stench growing from your SCOTUS, Chief (no)Justice John Roberts.

    There's a civil war brewing in this country, Justice Roberts.  And your court is turning up the heat.  What are you prepared to do?

    Nothing, I expect.

    This will not end well.

    • Decisions made with Roberts as the Chief Justice…

      District of Columbia v Heller (right to keep a loaded handgun at home)

      Citizens United v FEC (money=free speech / corporations are citizens) – overturning two previous court decisions to get there

      Arizona v United States (upheld state right to stop & detain those thought to be illegal immigrants)

      Burwell v Hobby Lobby (corporate citizens have religious rights)

      Obergefell v Hodges (legalized same-sex marriage – Roberts wrote the dissent)

      Five of the six Catholics (not Sotomayor) + the Episcopalian (Gorsuch) will decide this is the time to overturn Roe v Wade instead of just further gutting the meaning of it.

      Stay tuned for further Christofascism to reach your neighborhood.

  2. I guess I’ve resigned myself to just hoping the ruling destroys the Republican Party.

    That’s all I have left.

  3. The question is: since Barrett has decreed that pregnancy is no problem, that babies can just be left at the fire station, i want every pregnant woman to send all the medical bills to her sorry ass to be paid. No one mentioned cost in this high minded lol discussion did they?

  4. "…Anti-abortion fanatics don’t know the meaning of 'compromise.'"

    Yes, they do.  They know exactly what it means.  It means everybody loses.  Time we learned that as well.

    As for the practical impact of the Court's actions (and of the courts' actions, and of the legislatures' actions), the dishonesty is even more corrosive than any particular policy outcome(s).

  5. It is hard to see how see how this is not an attempt to impose theological beliefs of some religions upon the population as a whole.  This needs to be opposed as a violation of the separation of church and state.  To overturn Roe is to favor the theological and metaphysical beliefs of some religions over others and blurs the line between what is a secular matter and that based on religion.  

    It is apparent that our current SCOTUS thinks they are empowered to decide what God should think and do.

    Quite an overreach of power and moral authority to my belief system.


  6. First, Can the states who allow abortion means-test anyone from out-of-state and charge them extra according to their income (by their tax return.) The excess funds can be set aside for people who otherwise could not afford out-of-state travel for an abortion.

    Second, does anyone know if abortion would be legal on tribal land?  In many states where gambling is illegal, it's allowed on tribal land. Does that exemption apply to Seminole land? Can a federal ruling change clarity that it IS to be allowed and protected?

    Last, is this a gift in disguise before the 2022 elections? Gun control isn't it. Covid isn't it. We are trying to reach voters who must be convinced how radical the GOP has become. Will the SCOTUS finally make the argument that they've gone too far? 


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