For several decades now, the pro-life legal movement has made essentially the same argument about abortion: The standard set by the landmark Supreme Court ruling in Roe v. Wade and then modified in Planned Parenthood v. Casey is not only unconstitutional but sloppily assembled. The issue isn’t even the Supreme Court’s business. It should be thrown back to the states.
This argument was on full display this month when the high court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, the most significant abortion case in 30 years (Casey was decided in 1992). It concerns a Mississippi law that bans abortions after 15 weeks of pregnancy, which conflicts with the viability standard — when the baby could survive outside the womb — set in Casey, typically understood to begin at 24 weeks. Viability, Mississippi Solicitor General Scott Stewart argued, is a “quintessentially legislative line” with no ties to the court’s power to interpret the Constitution. The state asked the court to determine if such bans are unconstitutional. The court is now weighing those arguments, and if it decides in Mississippi’s favor, it will instigate the biggest abortion fight in 50 years.
Everyone involved knows the stakes of upsetting the status quo. Pro-life advocates, for instance, know that if Roe is overturned, that won’t necessarily mean the end of abortion. What will likely emerge is a patchwork of conflicting laws across the country. “The battle over abortion is going to be fought in each state and the American people will have the right to come up with these compromises,” said Carrie Severino, president of the conservative Judicial Crisis Network, on the day that the case was argued. “This is for the people and legislatures — not the courts — to decide.”
And on the other side, legal-abortion advocates were quick to point out that a seismic change in abortion laws could upset the country in unpredictable ways. “Two generations have now relied on this right, and one out of every four women makes the decision to end a pregnancy,” said attorney Julie Rikelman about the essential holding of Roe in her opening statement for Jackson Women’s Health. Rikelman made the uncomfortable contention that, at least according to present standards, calling that right into question will “propel women backwards.”
The controversy surrounding Dobbs, as well as the legal mess of the Roe and Casey combo, forced the justices to attempt a resolution to several issues at once. First, the court showed concern for the public’s perception of its deliberations. Justice Stephen Breyer repeatedly asked if Dobbs is a “watershed” case — something rising to the level of Brown v. Board of Education — that undoes an egregiously wrong decision, regardless of stare decisis, the legal doctrine of precedent invoked since Casey to let Roe stand. Breyer lamented that, no matter how the court decides, people on both sides of the debate won’t accept the decision: “They’re going to be ready to say, ‘No, you’re just political, you’re just politicians.'”
Perhaps in an attempt to shut down that perception, Justice Brett Kavanaugh aimed some of his questions at determining what the court is not considering. “If you were to prevail, a majority of states still could and presumably would continue to freely allow abortion?” he asked Stewart, implicitly pointing out that the Supreme Court is not in the business of abortion restriction, despite the direst predictions of its critics.
Kavanaugh, however, like the other justices, mostly attended to the issues raised in the case itself. Referencing Breyer’s “watershed” comment, he pointed out a series of 10 cases in which the court had reversed precedent, Brown foremost among them. Justice Samuel Alito, picking up on that line of argument, asked Solicitor General Elizabeth Prelogar to explain what makes Dobbs, which seeks to correct a decision that is widely acknowledged to be sloppy, any different from Brown, which disregarded a long-standing precedent to overthrow an “erroneously wrong” racial policy. Prelogar struggled to answer.
Chief Justice John Roberts targeted the viability question specifically. In questions to Rikelman, he appeared to be searching for some middle ground between the viability standard and the 15-week ban, which he called “not a dramatic departure from viability.” Some speculated that Roberts, who is notorious for his narrow decisions, was searching for some way to uphold Mississippi’s law without tossing Roe. Still, Roberts agreed with Stewart when he said that the viability line in Casey was “arbitrary,” a point that Roberts noted was made in deceased Justice Harry Blackmun’s private papers.
Justice Neil Gorsuch used Roberts’s concern with viability to press Prelogar on whether there really was much wiggle room for the court to deliver a centrist decision. Prelogar was unable to give a clear answer, and the seeming lack of gray area led abortion opponents to wonder if the court will actually rule in their favor. And the court might. Or it might deliver a bizarre, divided decision. It’s too difficult to make a prediction, and probably a waste of time, too: Opinions often change or are massaged between fall arguments and spring decisions.
No matter how the court decides, though, the pro-life movement, whose sustained energy has brought the abortion debate to this point, will face its biggest challenge since Roe. If the court delivers a victory, then there are still scores of state battles to tackle. And if the court does not, then the movement will face a massive reckoning, a large-scale version of the quiet civil war that occurred when many pro-lifers
doubted
that the court would even hear Dobbs. In that fight, a group of constitutional scholars pushed back against the conservative dogma that abortion is a state issue. Instead of simply tossing Roe, they argued, the court should find the right to life in the 14th Amendment. If the court rules against Mississippi, that position is likely to gain wider acceptance in the pro-life movement.
Already, the movement is
preparing
for a post-Roe fight. Researchers at the Susan B. Anthony List, one of the most influential pro-life advocacy groups, say they have plans to expand the organization’s state efforts. And states controlled by pro-choice legislatures, such as Vermont and Oregon, as well as the District of Columbia, have preemptively fought back by enshrining full abortion access in their constitutions. And there are a few states — Arkansas, Mississippi, and West Virginia, for instance — where pre-Roe abortion bans could be enforced immediately if the court tosses the decision.
But these state-level battles are only the beginning. A world in which at least some abortion protections are not automatically guaranteed is completely alien to the one we live in right now. And the pro-life movement won’t find much success unless it can back up wins in the courts and state legislatures with cultural accommodations for women who choose to complete their pregnancies rather than have an abortion.
“We need to be thinking creatively on the policy side and on the civil society side,” said Ryan Anderson, president of the Ethics and Public Policy Center.
Some of Anderson’s suggestions, which he laid out in an event following oral arguments, include paid family leave or extending child tax credits to cover the nine months a baby spends in the womb — “simple tweaks like that, that could make a difference in a family’s life.”
That’s logical. Small changes follow big changes. And this big change, if it comes, was almost a lifetime in the making.
Nic Rowan is managing editor of the Lamp.
