ARGUMENT ANALYSIS

Majority of court appears poised to uphold Mississippi’s ban on most abortions after 15 weeks

It has been nearly 30 years since the Supreme Court’s decision in Planned Parenthood v. Casey, which reaffirmed the fundamental right to abortion, first guaranteed by the court’s 1973 ruling in Roe v. Wade. Only one justice who participated in Casey is still on the court now: Clarence Thomas, who joined an opinion by then-Chief Justice William Rehnquist arguing that “Roe was wrongly decided, and that it can and should be overruled.” After nearly two hours of oral argument on Wednesday in Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that bans almost all abortions after the 15th week of pregnancy, it seemed that at least four of Thomas’ current colleagues are inclined to uphold the law. That decision would further curtail the right to abortion and undermine a key component of Roe and Casey. But the justices were once again deeply divided over whether to formally overturn those precedents, as Mississippi and its supporters are seeking.

Enacted by the state’s legislature in 2018, the law – known as the Gestational Age Act – has never gone into effect. Both a federal district court and the conservative U.S. Court of Appeals for the 5th Circuit blocked the law, explaining that Roe and Casey bar states from banning abortions before viability – which occurs at around 24 weeks of pregnancy. Mississippi then came to the Supreme Court, asking the justices to weigh in and, after the court agreed to take up the case, overturn those landmark decisions.

At least three justices – Thomas and Justices Samuel Alito and Brett Kavanaugh – appeared inclined to overrule Roe and Casey outright. Kavanaugh suggested that the Constitution does not directly address the question of abortion and that the issue should instead be left to the democratic process. If Mississippi were to prevail, he noted, the majority of states could still opt to allow access to abortion.

Chief Justice John Roberts appeared ready to uphold the law, but he focused primarily on the 15-week ban, rather than on the bigger question of whether to overrule Roe and Casey entirely. Roberts, who in 2020 voted to strike down a Louisiana law that made it harder for doctors to perform abortions on the ground that the law was virtually identical to a Texas law that the court had invalidated four years earlier, suggested that 15 weeks would be enough time for women to decide whether to obtain an abortion. His comments suggest the potential for a ruling that nominally keeps Roe and Casey in place but scraps the viability line – a decision that would allow Mississippi and other states to prohibit abortions at some points prior to when a fetus can live outside the womb.

Kavanaugh is one of three justices appointed by former President Donald Trump, who promised as a candidate that he would nominate justices who would overturn Roe. Trump’s other two appointees, Neil Gorsuch and Amy Coney Barrett, did not tip their hands as clearly as Kavanaugh. Barrett posited that “safe haven” laws, which allow parents to give up their newborns at designated safe places, might help to ease the burdens of parenting, which both Roe and Casey emphasized – a comment that might signal that she regards the premise of Roe and Casey as having changed.

The court’s three liberal justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — emphasized that overruling Roe and Casey would undermine the court’s legitimacy by creating the sense that the “Constitution and its reading are just political acts” that hinge on the court’s membership at any particular moment in time. Sotomayor made the point most explicitly, asking aloud whether the court would “survive the stench” that overruling Roe and Casey would create. But if there were two more votes to join the liberals and strike down the Mississippi law, it was hard to see them on Wednesday.

This article was originally published at Howe on the Court.