Supreme Court argument suggests shift in abortion jurisprudence

That, at least, is how the Washington Post interprets today’s oral argument in Dobbs v. Jackson Women’s Health Organization. The team of five (yes, five) Post reporters that covered the argument writes:

The Supreme Court on Wednesday signaled that it is on the verge of a major shift in its abortion jurisprudence after hearing nearly two hours of arguments from attorneys for Mississippi, an abortion provider from the state and the Biden administration.

NRO blogged the argument, and its team reads it the same way. (I missed the argument due to a doctor’s appointment and haven’t read a transcript.)

The Post sees the Court, at a minimum, abandoning its current rule that states may not prohibit abortion before the point of fetal viability, which is generally estimated to be between 22 and 24 weeks. It thinks that all six non-liberal Justices are on board with ditching that rule. The Post adds: “Whether that would mean overruling Roe v. Wade’s finding that women have a fundamental right to end their pregnancies was unclear.”

The key votes are those of Chief Justice Roberts and Justice Kavanaugh. According to the Post’s account, Roberts said “Mississippi’s limit of 15 weeks was not a ‘dramatic departure’ from viability and gave women enough time to make the choice to end their pregnancies.” I agree.

As for Kavanaugh, he “gave abortion rights supporters little to cheer in his comments and questions.”

He presented a list of cases in which the court had overturned long-held precedents and said that perhaps the best solution for the court was to be “scrupulously neutral” on an issue about which he said the Constitution is silent.

That sounds like a good idea. And if Kavanaugh adopts this “solution,” it likely means Roe v. Wade will be overturned regardless of what the Chief Justice decides.

The Post’s Amber Phillips provides her “four takeaways” from the argument here.

At NRO’s coverage, Ed Whelan makes three points about the argument:

1. Chief [Justice Roberts] seems to be searching for ruling that would reject viability line, which Casey called “central holding” of Roe. But what would he substitute in its place?

2. Court showed no interest in dismissing case. Chief affirmatively rejected that possibility.

3. Nothing problematic from Thomas, Alito, Gorsuch, Kavanaugh, or Barrett. Gorsuch in particular seemed to dismiss possibility of middle-ground ruling.

Michael Brendan Dougherty agrees:

It looks like at least five justices are skeptical of the holding in Roe and Casey. It looks like Chief Justice Roberts wanted a half-loaf solution of upholding Mississippi’s law without overturning Casey and Roe, but everyone made it difficult for him.

Dan McLaughlin adds:

[I]t is hard to see how pro-lifers could be more optimistic about how this argument went. Rikelman and Prelogar [the two lawyers arguing that the Mississippi law is unconstitutional] gave the Court no basis on which to rule against them without overruling Roe and Casey.

That strikes me as terrible strategy, but also the consequence of how the pro-choice movement has reasoned itself into a corner in which compromise is, so to speak, inconceivable. That intransigence could make it easier for the Justices to conclude that there really is no alternative way to avoid the all-or-nothing choice.

Kavanaugh, seen as the swing vote, hammered away at the point that getting the Court out of abortion is the neutral, small-d democratic middle ground. That is very encouraging.

But one should never underestimate Chief Justice Roberts’ ability to find alternatives to an “all-or-nothing” choice; nor should one discount his ability to bring at least one Justice with him.

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