Abortion

Conservative Justices Look Ready to Reverse Roe

SK Ashby
Written by SK Ashby

Conservative justices on the Supreme Court recently expressed reasonable doubts about the Texas law that bans virtually all abortions by enabling lawsuits against anyone who obtains or participates in an abortion, but that was never the only case that could lead to the end of Roe v Wade and we appear closer to that point than ever before.

During oral arguments in the case against Mississippi's ban on abortion after 15 weeks and before the point of viability established by Roe v Wade, the court's conservatives were unanimous in their skepticism of current precedent.

Justice Clarence Thomas suggested the right to abortion appears nowhere in the Constitution: “If we were talking about the Second Amendment, I know exactly what we’re talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written. It’s there. What specifically is the right here that we’re talking about?”

Justice Samuel Alito said people on both sides of the abortion issue have said the court’s viability line “really doesn’t make a lot of sense.” [...]

Justice Neil Gorsuch asked what the court should do if it were to “reject the viability line.” “Do you see any other intelligible principle that the court could choose?” he asked the Biden administration’s top Supreme Court lawyer, who was arguing that Mississippi’s ban should be struck down. [...]

Justice Amy Coney Barrett suggested that so-called safe haven laws in all 50 states that allow mothers to relinquish parental rights mean women can’t be forced into motherhood.

Chief Justice John Roberts, who is the closest thing we have to a swing voter on the current court, also hinted that the "viability line" of 24 weeks could be overturned. But if the court overturns Roe v Wade by rejecting the viability line, there's nothing undergirding the right to an abortion unless the court establishes a new line.

For their part, the court's liberals warned that the Supreme Court itself is at risk in this case with Justice Stephen Breyer saying a decision against Roe would "subvert the court’s legitimacy beyond any serious question."

I suspect the court's decision in this case will not look exactly like anyone expects it to, but if they allow the Mississippi law to go into effect then every state controlled by Republicans will pass their own bans and the Texas law that jumped through legal hoops to ban abortion won't even matter.

If we end up in a situation where women in half the states have full control over their bodies, and women in the other half of states do not, that won't be the end of it. Republicans are never going to throw their hands up and say 'we won' and go home. They're going to criminalize miscarriages and regulate every other aspect of pregnancy in the states they control, too. The culture war must continue because it's the only war they have.