The Supreme Court seemed poised on Wednesday to uphold a Mississippi law that bans abortions after 15 weeks of pregnancy, based on sometimes tense and heated questioning at a momentous argument in the most important abortion case in decades.
Such a ruling would be flatly at odds with what the court has said was the central holding of Roe v. Wade, the 1973 decision that established a constitutional right to abortion and prohibited states from banning the procedure before fetal viability, or around 23 weeks.
But the court’s six-member conservative majority seemed divided about whether to stop at 15 weeks, for now at least, or whether to overrule Roe entirely, allowing states to ban abortions at any time or entirely.
Chief Justice John G. Roberts Jr. was the leading voice on the right for a narrow decision. “The thing that is at issue before us today is 15 weeks,” he said.
He repeatedly questioned whether the viability line was crucial, saying that Justice Harry A. Blackmun, the author of the majority opinion in Roe, had called the line arbitrary in his private papers. Chief Justice Roberts added that much of the rest of the world has similar limits.
Julie Rikelman, a lawyer for the abortion clinic challenging the Mississippi law, disputed that, saying that limits in many other countries are subject to significant exceptions.
Other conservative justices indicated that they were not interested in the chief justice’s intermediate approach. Justice Samuel A. Alito Jr. said “the only real options we have” are to reaffirm Roe or to overrule it.
Assuming the three most conservative members of the court — Justices Alito, Clarence Thomas and Neil M. Gorsuch — are prepared to overrule Roe entirely, Chief Justice Roberts would need to attract at least two votes for a narrower opinion, one upholding the Mississippi law but not overruling Roe in so many words, to be controlling. But the most likely candidates, Justices Brett M. Kavanaugh and Amy Coney Barrett, said little to suggest that they were inclined toward that narrower approach.
The court’s three liberal members — Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor — were adamant that Roe should stand.
Should Roe be overturned, at least 20 states will immediately or in short order make almost all abortions unlawful, forcing women who can afford it to travel long distances to obtain the procedure.
Chief Justice Roberts expressed frustration with Mississippi’s litigation strategy. In the state’s petition seeking Supreme Court review, officials told the justices that “the questions presented in this petition do not require the court to overturn Roe or Casey,” though lawyers for the state did raise the possibility in a footnote. Once the court agreed to hear the case, the state shifted its emphasis and began a sustained assault on those precedents.
That amounted to a bait-and-switch, Chief Justice Roberts suggested.
The more liberal justices pressed Scott G. Stewart, Mississippi’s solicitor general, on the dangers of overruling a longstanding precedent after changes in the membership of the court.
Justice Breyer quoted from Planned Parenthood v. Casey, the 1992 decision that reaffirmed what it called Roe’s core holding, the one prohibiting states from banning abortions before fetal viability: “To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court’s legitimacy beyond any serious question.”
Justice Sotomayor asked whether the court would “survive the stench” of being considered a political institution, a point echoed by Justice Kagan.
The case, Dobbs v. Jackson Women’s Health Organization, No. 19- 1392, concerns a law enacted in 2018 by the Republican-dominated Mississippi Legislature that banned abortions if “the probable gestational age of the unborn human” was determined to be more than 15 weeks. The statute, a calculated challenge to Roe, included narrow exceptions for medical emergencies or “a severe fetal abnormality.”
The justices will cast tentative votes at a private conference in the coming days. The senior justice in the majority will then assign the majority opinion to a colleague or, just as likely, keep it. Draft opinions, almost certainly including concurrences and dissents, will be prepared and exchanged.
On average, it takes the court about three months after an argument to issue a decision. But the decision in the abortion case is not expected until late June or early July, when major rulings tend to arrive whether they were argued relatively early in the court’s term, as this one was, or in the court’s final argument session, in April.
A 2015 study published in The Duke Law Journal offered three possible reasons for waiting so long to decide the biggest cases.
One is that justices keep polishing the opinions that will define their legacies until the last possible moment.
A second possibility is that releasing several major decisions in quick succession, some liberal and some conservative, “may tend to diffuse media coverage and other commentary of any particular case, and thus spare the justices unwanted criticism.”
The third explanation was more personal: The biggest decisions are apt to be divisive and bruising, and the justices may think it best to issue them just before they leave for their summer breaks.
Justice Barrett again asks about giving up a baby for adoption as an alternative. Prelogar says part of the liberty rights on which society has come to rely since Roe is that women have the freedom to decide whether to terminate a pregnancy versus instead terminating their parental rights.
Justice Kavanaugh says Prelogar has made a forceful argument but says the other side would argue is that there are two lives at stake that have their own interests – that of the woman and that of the fetus. This is hard because you have to pick one or the other. Why should the Supreme Court be the arbiter rather than Congress and state legislatures and the people, with different answers in Mississippi and Alabama than New York and California? Prelogar says that’s not the right answer because the Supreme Court correctly recognized that this a fundamental right of women, and governments cannot violate fundamental rights.
Organizations involved with litigating the Mississippi abortion case have shown up in person at the Supreme Court. David Walls, the director of policy at the Family Foundation of Kentucky — which joined a legal brief in the Mississippi case — said he looked forward to the day Roe v. Wade was overturned.
BROOKLINE, Mass. — In Massachusetts, state lawmakers moved last year to strengthen access to abortion, affirming that it will remain available even if the Supreme Court overturns Roe v. Wade and other states ban the procedure. Still abortion providers in the state are bracing for the possible new realities in what advocates describe as a “post-Roe world.”
“We’re assuming it’s going to fall, and we want to be prepared,” said Audrey Etlinger Cohen, the director of nursing at Women’s Health Services, a clinic in Brookline, Mass., just outside of Boston.
State lawmakers in 2020 passed legislation allowing abortion up to 24 weeks of pregnancy and later in cases of a fatal fetal anomaly or to preserve the health of a pregnant person. It also lowered the age for teenagers to seek abortions without parental consent to 16. The legislation gained momentum during President Donald J. Trump’s administration as he nominated conservative justices to the Supreme Court, underscoring the vulnerability of the constitutional protection for abortion access.
If Roe is overturned, access would not change in Massachusetts. But roughly a dozen other states have trigger laws that would automatically restrict abortion, and other states are likely to limit access. It’s a landscape that abortion rights advocates expect could bring an influx of outsiders seeking abortions and could require resources to help low-income patients who otherwise could not afford to travel and pay for the procedure.
“A lot of those women are pretty determined to get an abortion, and so they will,” said Dr. Cheryl Hamlin, an obstetrician-gynecologist from the Boston area, who regularly works at the clinic in Jackson, Miss., at the center of the Supreme Court case that has emerged as a test of Roe. “They’ll scrape up whatever money they have to go someplace else.”
Already, there are vast disparities in what access looks like in Massachusetts compared to Mississippi, where the Jackson clinic is the only provider operating in the state. At Women’s Health Services, where Dr. Hamlin also regularly works, her day moves at a slower pace. She sees half as many patients. A trained counselor is on hand to meet with patients. Patients have access to a plush armchair in a private waiting room before the procedure, as well as full anesthesia. The entire process can be completed in a day.
Ms. Etlinger Cohen said the efforts to undermine access had been a source of motivation. “It seems it’s strengthening all of our resolves instead of weakening it,” she said.
“The biggest thing we can do is keep our doors open,” Ms. Etlinger Cohen added. “We can handle whatever is thrown at us as long as we can stay open.”
Justice Thomas again raises the question of whether criminal child neglect laws can be used to prosecute a woman who abused drugs while pregnant (before fetus was viable). Prelogar says she hasn’t read a case he referred to, then pivots to the impact on women’s liberty if Roe/Casey were overturned.
Prelogar argues that the existence of contraception is not sufficient to protect the liberty and autonomy interests of women. And she cites a number of reasons for why permitting abortion before 14 weeks is insufficient, including that some may not realize they are pregnant yet, or their lives may change such as losing a job or a relationship breaks up.
Justice Neil M. Gorsuch, who was appointed by President Donald J. Trump, dissented last year from a Supreme Court decision striking down a restrictive Louisiana abortion law. But he has not written or said much publicly about whether the constitution protects a right to abortion. There is good reason, though, to think he has given the topic a good deal of thought.
He is the author of a 2006 book called “The Future of Assisted Suicide and Euthanasia,” which explored related issues and glancingly addressed abortion.
“Human life is fundamentally and inherently valuable,” he wrote, adding that “the intentional taking of human life by private persons is always wrong.” This led him to support existing laws barring assisted suicide and euthanasia.
But that broad statement did not answer the question of whether a fetus is a human life in the sense that Justice Gorsuch meant, or where he stands on Roe v. Wade.
“Under Roe’s express holding,” Justice Gorsuch wrote, “a fetus does not qualify as a person.”
In a footnote, he described a contrary view from a 1986 dissent. Notably, it came from Justice Byron R. White, for whom Judge Gorsuch worked as a law clerk in 1993 and 1994. “The right to terminate a pregnancy differs from the right to use contraceptives because the former involves the death of a person while the latter does not,” Judge Gorsuch wrote, describing his old boss’s views.
Mississippi’s law prohibits abortions after 15 weeks of pregnancy, while Missouri has tried to ban the procedure after eight weeks and Texas and other states aim to set the limit at six weeks. These all contrast with current federal threshold, which allows abortion to be legal up until a fetus can survive outside the womb, the point known as fetal viability, which is typically about 23 or 24 weeks. Medically, here’s how the early pregnancy timeline unfolds.
Doctors measure the beginning of a pregnancy from the first day of a woman’s last menstrual period. That’s usually about two weeks before an egg and sperm join together in the process of fertilization. The last menstrual period is used to measure gestational age in pregnancy because it’s often impossible to know the exact moment of conception.
The earliest most women may have an inkling that they might be pregnant is after they miss their next period, which can be four weeks or more later. Pregnancy tests often don’t measure enough of the relevant hormone until about a week after that. That is why bans on abortion after six weeks set a deadline that occurs before many women even know they are pregnant.
After fertilization, the single fertilized cell divides and forms a growing cluster of many cells over five or six days and then implants in the uterus. This is considered an embryo for the next eight weeks after implantation, and is considered a fetus after that, according to the American College of Obstetricians and Gynecologists.
Abortion opponents refer to six-week abortion bans as “heartbeat” laws because about six weeks into a pregnancy, the tissues that will become the heart begin to form and a pulsing can be detected that is faster than the heartbeat of the expectant mother. But many medical experts say it is incorrect to call that pulsing a heartbeat because the heart has not yet developed.
Instead, experts say the pulsing is the vibration or “embryonic cardiac activity” of the fetal pole, a tubelike structure that will eventually become the heart.
At six weeks into a pregnancy, the embryo has also not developed a brain, spinal cord or other organs. Development of major organs occurs over the first trimester (defined as the first 13 weeks and 6 days of pregnancy).
At 15 weeks, the Mississippi law’s threshold, many women have not yet felt movement, known as quickening, which often occurs about 18-to-20 weeks into pregnancy, but can sometimes be felt as early as 13 weeks. The lungs are not yet fully formed, and the digestive system is not yet working, according to the American College of Obstetricians and Gynecologists.
Prelogar emphasizes that society has been organized and people have relied upon the idea that abortion is lawful for five decades. She argues that for the court to reverse course now would run counter to that societal reliance and the country’s concept of equality for women.
In 2018, Justice Samuel A. Alito wrote the majority opinion in a case that overruled an earlier major labor decision, dealing a blow to public unions. That opinion included a 14-page discussion of the “factors that should be taken into account in deciding whether to overrule a past decision.”
He mostly recited the usual factors. Was the challenged decision unworkable as a practical matter? Had people come to rely on it? Had the facts the decision was based on changed? Would overruling the decision harm the Supreme Court’s legitimacy?
But he also seemed to introduce a new and destabilizing element to the analysis.
“We recognize the importance of following precedent unless there are strong reasons for not doing so,” he wrote. “But there are very strong reasons in this case.” Among them, he wrote, was criticism of the overruled precedent in previous Supreme Court opinion.
There was a circular quality to this element of the analysis. In dissent, Justice Elena Kagan called it bootstrapping.
“Don’t like a decision?” Justice Kagan asked. “Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as ‘special justifications’” for overruling a precedent.
Justice Alito pushes Prelogar on the idea that a case should not be overturned simply because it was egregiously wrong on the day it was decided, even without some new facts or arguments. He seems to get Prelogar to concede that the court should have overruled Plessy, the 1896 case upolding racial segregation laws, had the issue come back before it in 1897 when nothing had changed. (Plessy was finally overruled in 1954’s Brown v Board of Education.) But as he asks again whether an egregiously wrong decision “should” be overruled based on its wrongness alone, Prelogar observes that the Supreme Court has never overruled a precedent without going through stare decisis factors.
If the Supreme Court upholds the Mississippi law, access to legal abortion in many other states could quickly change. Much depends on how exactly the court upholds the law, and to what extent that ruling weakens or overturns Roe vs. Wade, the court’s 1973 decision that extended federal protections for abortion.
If the Supreme Court overturns Roe, 26 states are certain or likely to ban legal abortion, according to the Guttmacher Institute, a group that tracks women’s reproductive health legislation.
A dozen states have so-called trigger bans in place that would effectively stop all abortions in the state if Roe were overturned. Eleven states have abortion bans at about six weeks of pregnancy that are not in effect, and a similar ban is in effect in Texas.
States could also quickly move to pass or enforce laws to similar Mississippi’s. Anti-abortion activists and lawmakers have worked for years to pass dozens of abortion restrictions and hold sway in state legislatures. Even now, in anticipation of a Mississippi ruling in their favor, activists in Ohio are pushing to pass a trigger ban with hopes it could be in effect by the time the Supreme Court rules.
Justice Sotomayor brings up Justice Kavanaugh’s long list of cases that overturned precedents. She says the 14th Amendment sets the limits in what the government can do, protecting a sphere of individual liberty. She says Kavanaugh’s list of celebrated cases involved the Supreme Court overturning state control of issues that belonged to individuals. Prelogar agrees that the vast majority involved the court saying it had been wrong before in allowing the state to take away individual rights.
The Justice Department asked the Supreme Court for permission to present oral arguments in the Mississippi case, underscoring the intense interest of the Biden administration and Attorney General Merrick B. Garland in the outcome.
Elizabeth B. Prelogar, only second Senate-confirmed woman to serve as solicitor general — Justice Elena Kagan was the first — will represent the Justice Department before the court.
In briefs filed in September,the Justice Department urged the court to reaffirm Roe v. Wade when it makes its decision in the Mississippi case, arguing that in not doing so the justices would uphold an unconstitutional law and undermine a long-held doctrine that gives weight to Supreme Court precedents.
Confirmed by the Senate in a 53-to-36 vote to become the nation’s 48th solicitor general, Ms. Prelogar earned a bachelor’s degree in English and Russian at Emory University, a master’s degree in creative writing at the University of St. Andrews in Scotland and a law degree at Harvard University. She was also a Fulbright scholar in St. Petersburg, Russia.
After law school she clerked for Mr. Garland when he served as a federal appeals court judge, and for Justice Ruth Bader Ginsberg as well as for Justice Kagan.
Ms. Prelogar worked as a partner at the white shoe law firm Cooley LLP and as an assistant to the solicitor general during the Obama and Trump administrations. During that time, she worked for the special counsel, Robert S. Mueller III, as part of the team investigating Russian interference in the 2016 election.
She has argued before the Supreme Court ten times, including twice last year and once this fall, when she argued that the state of Texas had violated the Constitution when it enacted its law that bans most abortions and empowers private citizens to enforce the statute.
Demonstrators have spread out outside the Supreme Court building as the justices hear arguments in the Mississippi abortion case inside.
Music, chants, and the exhortations of religious figures echoed off the Capitol building across the street, and lawmakers for and against abortion rights briefly joined the crowds to show their support.
Rickelman is done. Now the solicitor general, Elizabeth Prelogar, is speaking — adding the Biden administration’s support for the challengers seeking to keep Roe and Casey.
Justice Barrett asks questions suggesting the viability line is arbitrary, versus some other line like trimesters. Rickelman argues that it is principled because it is objective and doesn’t delve into philosophical questions like when life begins.
Justice Kavanaugh lists a long line of major and celebrated cases in which the Supreme Court overruled precedents. If the court had adhered to stare decisis in those cases, he says, “the country would be a much different place.” So if the court thinks Roe was wrongly decided, why doesn’t that history suggest they should overturn it and return to a position of neutrality and it will be okay. Rickelman says it requires special justification not present here, where there has been a rule for five decades and women’s liberty interest in autonomy is still the same as it always has been.
During his very contentious 2018 confirmation hearing, Justice Kavanaugh declared that he considered Roe to be settled law, winning him the crucial support of Senator Susan Collins. A reversal by him would be politically explosive.
Justice Kavanaugh asks about the view that the court should get out of the contentious issue and let the political process handle it. Rickelman notes that was addressed in Casey and also argues the government cannot resolve the issue in a way that makes women second-class citizens.
Last year, when the Supreme Court overruled a decision that had allowed non-unanimous jury verdicts for serious crimes, Justice Brett M. Kavanaugh contributed an 18-page concurring opinion. It set out an extensive analysis of when overruling precedents is appropriate.
He said every current member of the court had voted to overrule constitutional precedents, and he listed major decisions that had overruled earlier cases, including ones on school segregation and gay rights.
He counted seven factors that the court has considered in deciding whether to overrule constitutional precedents but said he was unable to discern “any consistent methodology or road map for how to analyze all of the factors taken together.”
Justice Kavanaugh proposed three basic tests: whether the challenged precedent was “grievously or egregiously wrong,” whether it had produced negative consequences for the law or the world and whether people had come to rely on it.
In a public conversation in 2014 at an annual dinner sponsored by the Federalist Society, the conservative legal group, Justice Clarence Thomas was asked about stare decisis, the Latin term for “to stand by things decided.”
“You are the justice who is most willing to re-examine the court’s precedents,” Judge Diane S. Sykes said.
Justice Thomas responded with a deadpan statement that the audience could tell was a joke. “That’s because of my affinity for stare decisis,” he said. Then he let out a guffaw.
“Stare decisis doesn’t hold much force for you?” Judge Sykes asked.
“Oh, it sure does,” Justice Thomas responded. “But not enough to keep me from going to the Constitution.”
Justice Antonin Scalia, who died in 2016, was present, and he could not have been surprised. “He does not believe in stare decisis, period,” Justice Scalia told one of Justice Thomas’s biographers.
Justice Thomas has made clear that he does not view stare decisis as a barrier to overruling Roe v. Wade. In 2019, he called the decision “notoriously incorrect.”
Justice Breyer’s reference to Hamilton is to his comment in the Federalist papers that the court has “no influence over either the sword or the purse,” meaning it relies on public trust to have its rulings carried out, not armies. The stature of the court and what would happen if it overturns 50 years of precedent is at much at issue in this argument as the Mississippi law itself.
Justice Thomas returns to first principles. What in the Constitution creates abortion rights? Rikelman says it comes from liberty rights derived from the 14th Amendment: The court has interpreted textual “due process” rights as extending to protecting family decisions and bodily integrity, including reproductive choice. Thomas is skeptical of substantive due process.
Justice Breyer tries to turn the focus back onto stare decisis and the danger of overturning a watershed precedent. He cites language in Casey about the Supreme Court’s institutional interest in not looking political. “That’s what kills us as an American institution.”
In 2019, the Supreme Court overruled a 40-year-old precedent that had allowed states to be sued in the courts of other states. As a practical matter, the decision itself was not particularly consequential, but its discussion of precedent was.
In a dissent, after repeatedly citing Planned Parenthood v. Casey, the 1992 decision that reaffirmed the constitutional right to abortion established in 1973 in Roe v. Wade, Justice Stephen G. Breyer said he feared for the future.
“Today’s decision can only cause one to wonder which cases the court will overrule next,” he wrote.
“The people of this nation rely upon stability in the law,” he wrote. “Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives.”
“To overrule a sound decision,” he wrote, “is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay.”
Justice Breyer did not address the fate of Roe v. Wade directly. But he sounded a general note of caution, saying it was “dangerous to overrule a decision only because five members of a later court come to agree with earlier dissenters on a difficult legal question.”
Justice Alito is asking a series of questions about why viability should be the line. He notes a woman who doesn’t want to have a baby has that same interest before and after viability. From the perspective of fetal life, he notes, viability is dependent on technology and medical practices, which changes over time.
Justice Alito seems to be exploring the idea of finding a middle ground between upholding and overturning Roe.
As a government lawyer, as an appeals court judge and on the Supreme Court, Justice Samuel A. Alito Jr. has consistently opposed legal protections for abortion.
Applying for a promotion in the Reagan administration in 1985, he wrote that he was proud to have helped advance “legal positions in which I personally believe very strongly.” One of those positions, he said, was that “the Constitution does not protect a right to an abortion.”
As an appeals court judge, he voted to uphold a Pennsylvania law that required women seeking abortions to notify their husbands. “Pennsylvania has a legitimate interest in furthering the husband’s interest in the fate of the fetus,” he wrote. The United States Supreme Court rejected his position the next year in Planned Parenthood v. Casey.
In a combative speech at Notre Dame in September, he defended the Supreme Court’s decision not to block a Texas law that barred most abortions after six weeks, saying it turned on procedural issues and had nothing to do with the fate of Roe v. Wade.
Judging by her scholarly work, Justice Amy Coney Barrett is skeptical of the power of precedent, at least in constitutional cases.
“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” she wrote in 2013 in a law review article.
She examined the role of the doctrine of stare decisis, which is Latin for “to stand by things decided” and is shorthand for respect for precedent. The doctrine is, then-Judge Barrett wrote, “not a hard-and-fast rule in the court’s constitutional cases,” and she added that its power is diminished when the case under review is unpopular.
“The public response to controversial cases like Roe,” she wrote, “reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.”
She added that there are consequences when the membership of the court changes. “The slow rate at which seats turn over itself encourages continuity in case law,” she wrote. “Justices do change their minds, but overruling is more likely when fresh eyes see a case.”
Justice Barrett is asking questions that focus on the possibility of adoption and safe haven laws, which allow a parent to safely abandon an infant with certain designated people so the child can become a ward of the state. Her point seems to be that banning abortion would not necessary doom women to also raise unwanted children, in terms of the impact on their lives.
Supporters of abortion rights demonstrating in front of the Supreme Court are staying in their designated area, but many anti-abortion demonstrators have moved past the dividing line set up by police. Some are actively confronting the abortion-rights crowd, yelling at them with loudspeakers.
Chief Justice Roberts compares America’s viability line to China and North Korea. Rikelman says his understanding of other countries’ laws is incorrect, and that similar countries like Canada and Britain essentially draw the line at viability, too.
Almost nothing in Chief Justice John G. Roberts Jr.’s background, career and early years on the Supreme Court suggested that he was anything but a skeptic of the existence of a constitutional right to abortion. But he has lately voted in surprising ways.
Last year, he voted with what was then the court’s four-member liberal wing to strike down a restrictive Louisiana abortion law, saying a recent precedent — one in which he had dissented — required the result. In a concurring opinion in the Louisiana case, he identified what he said was the central principle of Roe v. Wade: that women have the right to end their pregnancies before fetal viability.
In September, Chief Justice Roberts dissented from the Supreme Court’s refusal to block a Texas law that banned most abortions after six weeks, voting with the court’s three remaining liberals. He said he would have blocked the law while appeals moved forward, and he stressed that the majority had not determined that the law was constitutional.
“Although the court denies the applicants’ request for emergency relief today,” he wrote, “the court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”
