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.”
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.
