Supreme Court tests Roe; conservative justices mull scrapping ‘viability’ standard for abortion bans

The Supreme Court flirted Wednesday with unraveling the landmark 1973 Roe v. Wade decision that created a national right to abortion, with the court’s Republican-appointed justices pondering whether states should have the freedom to restrict abortions earlier in pregnancy — or to bar the procedure altogether. 

Mississippi’s ban on most abortions after 15 weeks was the battleground as the high court waded into the most persistent political battle in American life over the past 50 years.

During nearly two hours of oral arguments, the court’s conservative-leaning justices showed unanimity in their skepticism of the “viability” standard — about 24 weeks into pregnancy — for when states can prevent a woman from seeking an abortion.

Chief Justice John G. Roberts Jr. seemed to be searching for another standard to replace viability without overturning the fundamentals of Roe.

“The thing that is at issue before us today is 15 weeks,” he said.

Other Republican appointees mulled scrapping Roe altogether, which could remove the justices from the lightning-rod issue the court has struggled to handle for half a century.

Justice Brett M. Kavanaugh, a Trump appointee, was the most forthright in testing what it would mean to erase Roe and return the issue entirely to the states. He challenged each attorney with the premise that the Constitution is “neither pro-life nor pro-choice on the question of abortion” so the court shouldn’t be forced to be pro-life or pro-choice.

He said there is no good way for judges to strike a balance between the autonomy interests of a woman and the life rights of a fetus.

“The reason this issue’s hard is that you can’t accommodate both interests. You have to pick. That’s the fundamental problem. One interest has to prevail over the other at any given point in time. That’s why this is so challenging,” Justice Kavanaugh said.

“Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people, being able to resolve this?” he said.

U.S. Solicitor General Elizabeth Prelogar, arguing against the Mississippi law, said the right of the woman trumps other considerations.

“This is a fundamental right of women, and the nature of fundamental rights is that it’s not left up to the state legislatures to decide whether to honor them or not,” she said.

The last time Roe faced a challenge so fundamental was in 1992, in Planned Parenthood v. Casey. Conservatives anticipated that the court would overturn Roe, but a 5-4 ruling reaffirmed the right to abortion — albeit it with a new justification and a new standard that states could act to protect a fetus after “viability.”

Casey also established Roe as what legal scholars termed a “superprecedent” of the court and said difficult cases require reticence from justices contemplating overturning it.

The court’s three Democratic-appointed justices vociferously defended Roe. Justice Stephen G. Breyer, a Clinton appointee, called it a “supercase” and warned that overturning Roe would put the very nature of the high court at risk.

“The problem with the supercase like this, the rare case, the watershed case, where people are really opposed on both sides, and they really fight each other, is they’re going to be ready to say no, you’re just political, you’re just politicians. And that’s what kills us,” he said.

Chief Justice Roberts, appointed by President George W. Bush, said Casey’s reasoning led to a “paradoxical conclusion” that the more unpopular a decision, the firmer courts should be in leaving it in place.

“It is certainly true that we cannot base our decisions on whether they are popular or not with the people,” the chief justice said.

Mississippi Solicitor General Scott Stewart, defending his state’s law, said abortion isn’t found in the Constitution so decisions on its legality don’t belong to the courts.

“The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue,” he said. “It belongs to the people.”

Opposing Mr. Stewart were two women, Ms. Prelogar and Julie Rikelman, senior director at the Center for Reproductive Rights.

They defended Roe and Casey as the best the courts can do.

“There is no less a need today than 30 years ago or 50 years ago for women to be able to make this fundamental decision for themselves about their bodies, lives and health,” Ms. Rikelman told the court.

Several conservative-leaning states have challenged that notion. They argued that advanced medical science and a better understanding of pregnancy elevate the rights of the fetus.

Those states argue that a fetal heartbeat can be detected as early as six weeks and a fetus can feel pain before the current 24-week viability standard. Abortion rights supporters heatedly dispute that claim of fetal pain.

Both sides saw deep repercussions to whatever the court decides.

Justice Amy Coney Barrett, one of three Trump appointees on the court, said abortion rights backers’ position that barring abortions infringes on a woman’s bodily autonomy tracks with the national fight over mandates for vaccines during the COVID-19 pandemic.

Justice Sonia Sotomayor, an Obama appointee, said if the court does start to toss such a consequential precedent as Roe, gun rights supporters should be wary that the 2008 decision that established a Second Amendment right to private gun ownership could be next.

“There are many political people who believe the court erred in seeing [firearms ownership] as a personal right as opposed to a militia right,” she said. “If people believe it is all political, how will we survive?”

The Mississippi case is arguably the most momentous one the justices have handled in decades, touching on the most incendiary of issues.

While most other Western nations have reached a detente on abortion, usually through legislative compromise, the judicial fiat that imposed the Roe standard on Americans is the country’s persistent cultural dividing line.

Chief Justice Roberts said only North Korea and China rely on the same kind of viability standard for abortion rights that prevails in the U.S. Most of the world has adopted something similar to the 15-week line that Mississippi has, he said.

Ms. Rikelman countered that the 15-week line is soft in many of those nations and that abortion is available to women further along in their pregnancies.

Roe has been a continuing legal blister, and even some abortion rights defenders say the decision was bizarre.

That put abortion’s defenders in a tough position Wednesday. Although women have come to rely on Roe, with more than 60 million abortions in the years since the ruling, its legal reasoning has grown more creaky.

Ms. Prelogar, the Biden administration’s solicitor general, was on the ropes under questioning by Justice Samuel A. Alito Jr., who wondered why the court should show deference to an iffy precedent. He wondered whether the same had held true for race-related decisions such as Plessy v. Ferguson, the 1896 case that created the “separate but equal” doctrine that underpinned segregation.

“Suppose Plessy v. Ferguson was reargued in 1897, so nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?” Justice Alito asked.

Ms. Prelogar agreed that Plessy was “egregious” but said it took a change in facts — that segregation was wrong — to overturn the decision in 1954.

“Had it come to the court in 1897, should it have been overruled or not?” the justice prodded.

“I think it should have been overruled, but the factual premise was wrong in the moment it was decided,” Ms. Prelogar said.

“So there are some circumstances in which a decision may be overruled, properly overruled, when it must be overruled, simply because it was egregiously wrong at the moment it was decided. Correct?” the justice challenged.

Ms. Prelogar countered that the court has never erased a precedent only for that reason.

The Guttmacher Institute, which advocates for abortion rights, estimates that if decisions about the legality of the procedure are returned to the states, 26 states are likely to enact stricter access laws.

Nine of those states already have bans on the books from before 1973, which would presumably take effect automatically if the court returns the issue to the states. Other states have enacted “trigger” bans, which would snap into place should the court allow.

Abortion rates peaked around 1980 and have been generally declining since, but so have birthrates, suggesting the drop is caused more by fewer pregnancies than by changes in attitudes or legal access.

Abortion rights backers were plotting ways to help women in those states access the procedure. New York Attorney General Letitia James, who is running for governor in next year’s election, proposed having her state set up a fund to help women travel to New York for abortions.

On Capitol Hill, House Speaker Nancy Pelosi, California Democrat, urged senators to pass a bill that has cleared the House that deems abortion “essential health care” and imposes minimum federal standards for abortion across the country, surmounting state laws.

The justices are also under assault as liberal activists renew calls to expand the court’s membership and give Democrats a chance to add more liberal-leaning jurists. They want to balance out the 6-3 ratio of members appointed by Republican presidents versus Democratic presidents.

The case argued Wednesday was Dobbs v. Jackson Women’s Health Organization.

Dr. Thomas E. Dobbs III is Mississippi’s state health officer. Jackson Women’s Health Organization is the last remaining abortion clinic in the state.

Dr. Dobbs was appealing a ruling by the 5th U.S. Circuit Court of Appeals, which upheld a federal district judge’s decision that the state law ran afoul of Roe.

The justices also are considering another thorny abortion case this term. Texas enacted a law this year that bars abortions after a fetal heartbeat can be detected. In a twist, the state turned enforcement over to the public, creating a $10,000 cause of action against anyone who conducts an abortion.

Justices have allowed that law to remain in place but sped up oral arguments on whether the state can be sued to block private lawsuits.