Would the Court consider viability (the ability of a fetus to survive outside the womb) as a dividing line and find it more constitutionally binding than any other? Or will the conservative majority of the Court help Mississippi win by concluding that the Constitution does not protect the right to choose abortion?
Before Wednesday, the second path – abolishing abortion rights – seemed harder to envision, simply because generations of Americans have grown up taking abortion (and Roe) rights for granted. To overturn the 1973 decision would be a poignant declaration of women’s freedom and autonomy – a social and political earthquake that would fundamentally change the lives of many.
In the Dobbs case, some observers wondered whether the Court’s conservative judges wanted to deal a blow against abortion rights while minimizing the damage to the Court’s institutional legitimacy. One possible way to do it: say that the possibility line doesn’t make sense and stop there.
Just eliminating the possibility would be a major blow to abortion rights. A decision to do so would encourage conservative states, push for a ban on abortion early in pregnancy, rewrite abortion laws, and create uncertainty about the future of abortion rights. pregnant. However, most conservative judges seem to want to go much further.
Alito expressed skepticism about the way Roe derived the Fourteenth Amendment’s right to abortion, questioning whether “any judicial decision” at or shortly after the 1868 amendment was passed recognize that “abortion is a right”. Gorsuch suggested that if the Court allots viability, there is no other “understandable principle” for judges to follow other than inverting Roe.
The Court’s newest justices, Brett Kavanaugh and Amy Coney Barrett, appear poised to follow Thomas, Alito and Gorsuch in reversing Roe. Kavanaugh suggests that a better approach might be to declare that the Constitution is abortion-neutral — and that states can decide for themselves about abortion.
When questioned by Rikelman, he said that the Court was “forced by the position you are taking … to choose within the most controversial social debate in American life.” He suggested that the Constitution does not recognize “the right to choose or to live” – and that the Court “should be strictly neutral on the issue of abortion, neither choice nor pro-life.”
Kavanaugh’s idea of a compromise seems quite different from Roberts’s. Counterterrorism lawyers have argued that abortion itself is unconstitutional because the fetus is a constitutional right. Kavanaugh seems to want to rule out that possibility, at least for now. But his honest solution was not to delay precedent but to let about half of the states ban abortion.
Amy Coney Barrett, another key vote, took aim at Rikelman’s argument that women rely on abortion to gain equal citizenship. Mississippi has insisted that if women need an abortion, they won’t do it anymore. Barrett seems to feel the same way. She introduced safe haven laws – allowing people to safely hand over unwanted babies (and without penalty) at designated locations like hospitals and fire stations – like a signal that women no longer need to have an abortion.
Roe and subsequent cases, she suggests, have focused on how forced parenthood “will hinder women’s access to the workplace and equal opportunities.” “Why doesn’t the safe-haven law address that?” Barrett asked Rikelman in an exchange. She suggests that pregnant people can simply choose to adopt and avoid any obstacles to achieving equal citizenship.
If you think that sounds like a Court is poised to overturn Roe, you’d be right.
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