The futures of women nationwide hang in the balance as the U.S. Supreme Court considers overturning Roe v. Wade, the landmark 1973 case giving women the right to an abortion.
The challenge has long been in the works. Since the court cemented a 6-3 conservative majority last year—with the help of then-President Donald Trump, who appointed three new justices—attacks on reproductive rights have been fast and furious.
The case before the Supreme Court on Wednesday, Dobbs v. Jackson Women’s Health Organization, comes just a month after the court heard arguments for and against Texas’ six-week abortion ban, which took effect September 1.
The Mississippi law, which bans almost all abortions 15 weeks after pregnancy, was challenged by the Jackson Women’s Health Organization, the only licensed abortion provider in the state. The case went up the ladder to the Supreme Court, where it was heard today by the nine justices.
The result of the case will likely rest on Chief Justice John Roberts (a swing vote) as well as justices Brett Kavanaugh and Amy Coney Barrett, whose opinions are uncertain. The other six justices are expected to split equally, with liberals in favor of upholding Roe and conservatives in favor of overturning.
The central argument is over whether the right to abortion is included in the U.S. Constitution. Opponents of abortion say the court’s decision in Roe was the result of activist judges, and the right is not supported by the text of the Constitution.
On the other hand, supporters of abortion cite major Supreme Court decisions that are also not in the Constitution, such as the right to contraception and same-sex marriage. Supporters also say the court must uphold its precedents or it will be perceived as acting politically, in response to pressure from Trump and other conservatives to support abortion bans.
What is the precedent?
Roe v. Wade (1973): The U.S. Supreme Court ruled 7-2 that the due process clause in the 14th Amendment includes a right to privacy that also protects a woman’s right to choose abortion. In the first trimester, the state cannot regulate abortion. In the second trimester, it can impose regulations that are “reasonably related to maternal health.” In the third trimester, after the fetus reaches the point of “viability,” where it can survive outside the womb, the state can regulate or ban abortion.
Planned Parenthood v. Casey (1992): The U.S. Supreme Court upheld Roe in a 5-4 decision but replaced the trimester timeline with the “undue burden test,” allowing the state to restrict abortion at any time during pregnancy as long it does not impose an “undue burden” on the right to have an abortion before a fetus is viable, around 24 weeks.
Where do the nine justices stand on Roe v. Wade?
Chief Justice John Roberts: Uncertain.
Roberts’ comments during today’s hearing signal he may be willing to get rid of the viability rule but not overturn Roe entirely. He suggested 15 weeks might be a reasonable limit on abortion. Early in the hearing, Roberts pointed out Mississippi didn’t initially ask the court to overturn Roe, merely review the viability line. When the court said they would hear the case, the state began an unabashed attack on Roe.
Brett Kavanaugh: Uncertain.
Kavanaugh is a conservative justice (appointed by Trump in 2018). His questions during today’s hearing suggest he’s willing to vote in favor of severely limiting Roe, if not reversing it. He raised the idea that the court should be “scrupulously neutral on the question of abortion, neither pro-choice nor pro-life,” leaving the decision in the hands of the states.
Amy Coney Barrett: Uncertain.
Barrett is a conservative justice (appointed by Trump last year), but she’s a big believer in precedent. Today, she raised the idea that adoption (growing via “safe haven” laws) is a reasonable alternative to abortion.
Clarence Thomas: Likely against.
Thomas is a conservative justice who has written Roe was wrongly decided and should be overturned.
Samuel Alito: Likely against.
Alito is a conservative justice who has previously expressed support for restrictions on abortion. During today’s hearing, he said the viability line is “arbitrary,” adding “the fetus has an interest in having a life, and that doesn’t change from the point before viability and after viability.”
Neil Gorsuch: Likely against.
Gorsuch is a conservative justice who has had few rulings on abortion. He suggested the undue burden test is “unworkable” in today’s hearing.
Stephen Breyer: Likely for.
Breyer is a liberal justice and consistent supporter of abortion rights. During today’s hearing, he emphasized the importance of stare decisis, the idea that the court should follow precedent. “To re-examine a watershed [like Roe] would subvert the court’s legitimacy,” he said.
Sonia Sotomayor: Likely for.
Sotomayor is a liberal justice and reliable vote for abortion rights. During today’s hearing, Sotomayor said that in the more than three decades since Casey, 15 justices have reaffirmed the “viability” rule. She argued that the changing membership of the court has prompted the Mississippi and Texas challenges to Roe.
“Will this institution survive the stench that this creates in the public perception—that the Constitution and its reading are just political acts? I don’t see how it is possible,” she said.
Elena Kagan: Likely for.
Kagan is a liberal justice who has previously expressed support for abortion rights. “Usually there has to be a justification, a strong justification” for the court to overturn precedent, she said.
What will happen if Roe v. Wade is overturned?
The power to regulate abortion would be in the hands of the states, 21 of which have laws in place that would ban almost all abortions if Roe or Casey was overturned.
In North Carolina, the 20-week ban on abortion would likely stand, despite the fact the U.S. Court of Appeals ruled it unconstitutional earlier this year. Abortion advocates have said the law violates Roe’s viability rule and that the exception regarding women’s health is dangerously narrow.
The right to abortion is severely limited in North Carolina, with restrictions on where abortions can be performed and who can administer them.
Women seeking abortions are required to wait 72 hours and receive “counseling,” wherein a doctor or other licensed professional tells them about the likely age of the “unborn child,” alternatives to abortion, risks of abortion, and availability of OBGYN/prenatal care and financial assistance. Minors are also required to get parental consent for abortion.
In addition, state health insurance cannot include abortion coverage, nor can public employees be covered for abortion. Women making low incomes are prohibited from receiving state funding for abortions.
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Follow Staff Writer Jasmine Gallup on Twitter or send an email to jgallup@indyweek.com.
