Roe v. Wade's future is in doubt after historic arguments at Supreme Court

Dec 1, 2021
Originally published on December 10, 2021 4:34 am

Updated December 1, 2021 at 5:35 PM ET

The right to an abortion in the United States appeared to be on shaky ground as a divided Supreme Court heard arguments Wednesday on the fate of Roe v. Wade, the court's 1973 decision that legalized abortion in the United States.

At issue in Wednesday's case — Dobbs v. Jackson Women's Health Organization — was a Mississippi law that bans abortion after 15 weeks of pregnancy. Until now, all the court's abortion decisions have upheld Roe's central framework — that women have a constitutional right to an abortion in the first two trimesters of pregnancy when a fetus is unable to survive outside the womb, roughly 24 weeks. But Mississippi asked the Supreme Court to reverse all its prior abortion decisions and return the abortion question to the states.

The court's three newest justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all Trump appointees — appeared to signal they are ready to side with Mississippi — but it wasn't immediately clear if all of them would strike down Roe, as the state of Mississippi has asked.

The new six-justice conservative supermajority seemed to fall into two camps. In one were Justices Clarence Thomas, Samuel Alito and Gorsuch apparently willing to reverse Roe and perhaps other decisions based on a right to privacy. And in the other camp, the court's other three conservatives, reluctant to go beyond abortion.

Even on abortion there appeared to be some divisions, the question being whether dismembering the court's abortion jurisprudence would be a one-step dance — outright reversal — or something short of that, more a two- or three-step dance that would play out over several years.

Chief Justice John Roberts, a fellow conservative, focused on on abortion only, and on the viability line, not reversal.

"Why would 15 weeks be an inappropriate line? Viability, it seems to me, doesn't have anything to do with choice, but if it really is an issue about choice, why is 15 weeks not enough time?" he asked Julie Rikelman, who represented the clinic bringing the case.

Rikelman replied: "If the court were to move the line substantially backwards — and 15 weeks is nine weeks before viability, your honor — it may need to reconsider the rules around regulations because if it's cutting the time period to obtain an abortion roughly in half, then those barriers are going to be much more important."

This artist sketch depicts Mississippi Solicitor General Scott Stewart, standing while speaking to the Supreme Court on Wednesday. Center for Reproductive Rights Litigation Director Julie Rikelman is seated right.
Dana Verkouteren / AP

But Justice Alito opined that "the fetus has an interest in having a life, and that doesn't change does it?"

Justice Barrett, who replaced Justice Ruth Bader Ginsburg on the court, asked several questions about adoption. The mother of seven children, two of them adopted, she was perhaps harder to read than the court's other conservatives, but she seemed to draw a distinction between bearing a child and parenting. And she pointed to the state's argument that in the case of failed contraception, a woman can always give her child up for adoption.

But Solicitor General Elizabeth Prelogar, representing the Biden administration, said that "is an incredibly difficult choice," and one that the court "for 50 years has recognized must be left up to [women] based on their beliefs and their conscience and their determination about what is best for the course of their lives."

Justice Kavanaugh — who replaced Justice Anthony Kennedy, a more centrist Justice on abortion questions — signaled that he may well be willing to reverse Roe. While nodding to the court's precedents, he said that when it comes to abortion there are two interests — the woman's right to terminate a pregnancy and the interest of fetal life. "The problem is you can't accommodate both interests. You have to pick," he said. "Why should this court be the arbiter rather than Congress, state legislatures, state supreme courts and the people being able to resolve this."

The court's liberals quoted from the court's previous decisions on abortion, and the liberty interest enshrined in those decisions. What has changed, asked Justice Sonia Sotomayor, noting that the state of Mississippi in enacting the ban on abortions after 15 weeks, cited the change in the court's membership.

"Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" she asked.

A decision in the case is expected by summer.

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MARY LOUISE KELLY, HOST:

Roe v. Wade, the Supreme Court's landmark 1973 abortion decision, looked to be on shaky ground today. The justices heard nearly two hours of arguments in a case from Mississippi that seeks to reverse, or at least dramatically cut back, on abortion rights defined in Roe nearly 50 years ago. NPR's legal affairs correspondent Nina Totenberg reports.

(SOUNDBITE OF PROTEST)

UNIDENTIFIED PROTESTER: When I say liberate, you say abortion. Liberate...

UNIDENTIFIED PROTESTERS: Abortion.

UNIDENTIFIED PROTESTER: Liberate...

UNIDENTIFIED PROTESTERS: Abortion.

(SOUNDBITE OF PROTEST)

UNIDENTIFIED PROTESTERS: Hey, hey, ho, ho. Roe v. Wade has got to go.

NINA TOTENBERG, BYLINE: While there were large, cacophonous crowds outside, inside the Supreme Court chamber, the tone was somber, respectful and to some extent, clear. The new conservative super-majority, with three Trump appointees, seem prepared to either outright reverse Roe or dramatically limit it. At issue was Mississippi's law banning all abortions after 15 weeks. That's two months earlier than the Roe framework, which permits abortions in roughly the first 24 weeks of pregnancy when the fetus is not viable - it can't survive outside the womb. For decades, the court has consistently struck down laws like Mississippi's, reaffirming Roe's central framework. But today, there did not seem to be five votes for that. The question seemed to be - would dismembering the court's abortion jurisprudence be a one-step dance, outright reversal or something short of that, more of a two- or three-step dance that will play out over several years? The court's three liberal justices seemed incredulous, pointing to the half century of precedents and the court's 1992 decision in Planned Parenthood vs. Casey reaffirming the viability framework. Here, for instance, is Justice Sotomayor.

(SOUNDBITE OF ARCHIVED RECORDING)

SONIA SOTOMAYOR: Fifteen justices over 50 years have reaffirmed that basic viability line. Four have said no. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political hacks?

TOTENBERG: As for the court's conservatives, they seem to fall into two camps, with Justices Thomas Alito and Gorsuch apparently willing to reverse Roe and perhaps other decisions based on a right to privacy, and the court's other conservatives reluctant to go beyond abortion. Chief Justice Roberts was focused on abortion only and on the viability line, not reversal.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: And why would 15 weeks be an inappropriate line? Viability, it seems to me, doesn't have anything to do with choice. But if it really is an issue about choice, why is 15 weeks not enough time?

TOTENBERG: Lawyer Julie Rickelman, representing the clinic that's challenging the Mississippi law, replied that if the court jettisons the viability line, there's no stopping point.

(SOUNDBITE OF ARCHIVED RECORDING)

JULIE RICKELMAN: States will rush to ban abortion at virtually any point in pregnancy. Mississippi itself has a six-week ban that it's defending with very similar arguments as it's using to defend the 15-week ban.

TOTENBERG: That prompted this from Justice Alito.

(SOUNDBITE OF ARCHIVED RECORDING)

SAMUEL ALITO: The fetus has an interest in having a life. And that doesn't change - does it? - from the point before viability to the point after viability?

TOTENBERG: Justice Barrett, the mother of seven children, two of them adopted, was perhaps harder to read than the court's other conservatives, but she seemed to draw a distinction between bearing a child and parenting. And she pointed to the state's argument that in the case of a failed contraception, a woman can always give her child up for adoption. Solicitor General Elizabeth Prelogar, representing the Biden administration, replied this way.

(SOUNDBITE OF ARCHIVED RECORDING)

ELIZABETH PRELOGAR: I think for many women, that is an incredibly difficult choice. But it's one that this court for 50 years has recognized must be left up to them based on their beliefs and their conscience.

TOTENBERG: And Justice Kavanaugh, while nodding to the notion of following precedent, said that when it comes to abortion, there are two interests - the woman's right to terminate a pregnancy and the interest in fetal life.

(SOUNDBITE OF ARCHIVED RECORDING)

BRETT KAVANAUGH: And the problem is that you can't accommodate both interests. You have to pick. Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?

TOTENBERG: At the end of the day, it's dangerous to predict outcomes at the Supreme Court. But on this day, there did not appear to be five votes to uphold Roe v. Wade and other abortion precedents that have dominated the law for the last five decades.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.