In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) the U.S. Supreme Court reaffirmed the “essential holding” of Roe v. Wade (1973) that the federal constitution allows a woman to have an abortion before viability (between 23-24 weeks). Mississippi prohibits abortions, except in a medical emergency or in the case of a severe fetal abnormality, after 15 weeks. In Dobbs v. Jackson Women’s Health Organization Mississippi has asked the Supreme Court to overturn Roe and Casey.

Many speculated before oral argument that it was likely the most conservative Justices (Thomas, Alito, and Gorsuch) would be in favor of overturning precedent, the more liberal Justices (Breyer, Sotomayor, and Kagan) would be in favor of keeping Roe and Casey intact, and the conservative leaning Justices at the center of the Court (Roberts, Kavanaugh, and Barrett) might look for a middle ground in the case. Such middle ground might include the Court allowing abortion at some threshold before viability—either up to 15 weeks or some other threshold, specified or not.

In the argument Chief Justice Roberts and Justice Gorsuch seemed interested in the middle ground position. Roberts asked about it repeatedly and at length. At one point he explicitly asked “why is 15 weeks not enough time” for a woman to obtain an abortion. Justice Gorsuch asked two of the three litigants about whether the Court should consider an option other than viability.

Justices Thomas, Alito, Kavanaugh, and Barrett didn’t ask any questions indicating that they were interested in a middle ground position. Justice Alito probably seemed the most skeptical about keeping Roe v. Wade. He asked the Solicitor General, who argued in favor of retaining Roe and Casey, whether precedent can ever be overturned merely because it is “egregiously wrong.” Justice Thomas asked all the litigants to explain what right is at issue in this case. Justice Barrett asked numerous questions on a wide range of topics. Justice Kavanaugh repeatedly noted that the constitution is silent on abortion and suggested Congress and state legislatures should decide the issue.  

The more liberal Justices appear likely to rule that Roe and Casey should not be overturned or modified. Justice Breyer twice admonished listeners to read specific pages from the Casey decision where the Court concluded there was no legal basis to overturn Roe. Justice Sotomayor pointed out that some sponsors of the Mississippi law said they supported it because the Court has new Justices. She asked whether the Court would be able to survive “if people believe everything we do is political”? Justice Kagan opined that “not much has changed since Roe was decided” regarding the arguments in favor of and against abortion.

The Supreme Court will issue an opinion in this case by the end of June 2022.

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