Reason for hope this week

The first Day of December will long be remembered as a good day for the sanctity of life. The Supreme Court heard bold arguments to reverse Roe v. Wade for the first time in nearly 30 years. And the comments of many justices indicated that reversing Roe is on the table. While Supreme Court tea leaves are always hard to read, several key moments from Wednesday’s argument indicate that the Supreme Court may be poised to uphold Mississippi’s commonsense law, and further, that there may finally be five votes to reverse Roe.

The argument in Dobbs v. Jackson Women’s Health Organization opened with Mississippi’s solicitor general, Scott Stewart, explaining the modest nature of the Gestational Age Act. Mississippi’s fifteen-week law allows months for a pregnant woman to obtain an abortion, prevents a particularly brutal abortion procedure that involves dismembering the child, and protects life at a point when a baby can move and stretch, hear her mother’s voice, and likely feel pain. Despite all this, the lower courts struck it down because Roe prohibits states from protecting life prior to viability—about 22 weeks gestational age.

Mississippi then explained that nothing in Constitution’s text, structure, or history supports a right to an abortion and that abortion is categorically different from any other right endorsed by the Supreme Court because, unlike any other such right, it ends a human life.

It is broadly presumed that there are three votes to overturn (Justices Thomas, Alito, and Gorsuch) and three votes to uphold (Justices Breyer, Kagan, and Sotomayor) Roe, thus the fate of Roe lands in the hands of Justices Kavanaugh and Barrett—the newest members of the Court—and the Chief Justice—whose vote sometimes lands in the middle. The questions asked by each of these three justices give supporters of life real cause for hope.

The Chief Justice, for example, compared the United States’ permissive abortion laws to those of the People’s Republic of China and North Korea. As he explained, one doesn’t need to be in favor of looking to international law for purposes of constitutional interpretation, to be worried about the company that American abortion law keeps. The Chief Justice also explained that the viability rule—the rule that states may not protect life until after a baby reaches around 22 weeks gestational age—has no basis in the Constitution. The Chief noted that Roe’s author, Justice Blackmun, had referred to the rule as arbitrary. He further suggested that the viability rule was unnecessary to the decisions in Roe and subsequent cases, which would mean the Court would be free to disregard it this time round. All of this suggests the Chief Justice may vote to uphold Mississippi’s law.

Justice Kavanaugh asked General Stewart whether he agreed that the Constitution was neutral, neither pro-life nor pro-choice, and if so, whether that meant the Supreme Court ought to be neutral on the issue, too. He followed up by asking the abortion clinic’s attorney whether the problem was that the Court had been forced to pick sides on the most contentious social debate in American life on an issue on which the Constitution is silent. In such case, shouldn’t the Supreme Court be “scrupulously neutral?,” he queried.

In addition to Justice Kavanaugh’s worries that Roe placed the Court at the center of a controversy that belonged with the people, Justice Kavanaugh had a strong answer to the argument that stare decisis—the doctrine that it is better that the law be settled than that it be right—requires the Court to preserve Roe. Justice Kavanaugh listed a litany of cases, some of, as he called them, the Court’s most consequential and important cases, in which the Supreme Court had overruled prior decisions. Justice Kavanaugh noted that the world would be a much different place, for example, if the Supreme Court had never overruled the separate but equal doctrine in Brown v. Board of Education of Topeka.

For her part, Justice Amy Coney Barrett’s questions suggested that she disagreed with two key arguments advanced by the abortion clinic. First, Justice Barrett, an adoptive mom herself, cited the availability of safe haven adoption laws in all 50 states and suggested that these laws relieved much of the burden of motherhood that had so concerned the Roe majority. (Indeed, Justice Blackmun wrote in that opinion that motherhood “forced” upon women a “distressful life and future.”) Justice Barrett also emphasized that overruling Roe would not call into question any of the Court’s other opinions, such as those establishing the right to contraception.

The case for life was forcefully made on Wednesday, and from the key justices and their questions, it appears that Roe’s days may finally be numbered.