John Roberts has a plan that would gut — yet save — Roe v. Wade. Can it work?

By CNN

Published December 1, 2021 12:58 PM

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Chief Justice John Roberts came to Wednesday’s abortion arguments with an idea, an idea that no other Supreme Court justice would likely want but one that a slim majority might eventually accept.

By his questions during the intense session that ran nearly two hours, Roberts suggested the high court reverse a significant part of Roe v. Wade but preserve some constitutional right to abortion. Roberts would end the existing protection for a woman’s abortion decision before viability — that is when the fetus can survive outside the womb — at about 23 weeks. He suggested he would let states ban abortion at 15 weeks of pregnancy, as Mississippi has done in the case before the justices, but that he would not go further to completely ban abortion.

The chief’s gambit, however, would require at least one of the five other conservatives to join him. Otherwise, this newly remade Supreme Court appears ready to reverse the Roe landmark altogether. One way or another, the court is poised to retrench on nearly a half century of constitutional protection.

The five conservatives to Roberts’ right, including three appointees of former President Donald Trump, have signaled through the years their opposition to abortion rights. Trump vowed to appoint justices who would overturn Roe, and Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have all previously criticized decisions giving women a choice to end a pregnancy.

Despite his history of fighting abortion rights, the institutionally minded Roberts showed little interest Wednesday in going further than the precise question that the justices had agreed to take up: May states ban abortions before fetal viability without infringing the Constitution?

All told, the robust Q&A demonstrated the new era of reproductive rights for American women. Not since 1992 has the court heard such a direct threat to Roe, and today’s bench lacks the moderate Republican-nominated justices who steered the 1992 compromise decision that endorsed the core of Roe’s essential holding that gave women the right to end a pregnancy before fetal viability.

Because of Covid-19 restrictions, the tableau in the courtroom was spare, as well as solemn, belying the clamor of hundreds of demonstrators outside. The few dozen spectators inside (mainly journalists and law clerks) donned high-grade, tight-fitting masks and were well spaced on the red upholstered benches in a courtroom that usually seats 300.

The justices — all but Sonia Sotomayor were unmasked — wore the weight of the moment on their faces, and their questions cut to important issues of a woman’s autonomy, fetal life and the court’s institutional integrity — built on regard for precedent.

The 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions used viability as a cutoff point for when a state’s interest in protecting the life of a fetus could overtake the woman’s ability to end a pregnancy.

Roberts repeatedly suggested the viability line was arbitrary and irrelevant to the fundamental holdings of Roe and Casey — a point contradicted by lawyers challenging the Mississippi law. At the same time, Roberts revealed an openness to retaining some right for women to terminate a pregnancy at an early stage.

Three justices to his left, Stephen Breyer, Sotomayor and Elena Kagan, want to preserve the full breadth of Roe v. Wade and Planned Parenthood v. Casey. They noted that for more than a half century, women have relied on those rulings, they are woven into the American legal and social fabric, and to reverse any part of them would compromise the high court’s usual adherence to precedent.

But the votes of those three liberals — in the minority — are unlikely to determine the resolution of this make-or-break controversy.

Will any justice go along?

Trump appointees Gorsuch and Kavanaugh appeared inclined to eliminate Roe v. Wade. Barrett, perhaps less so, by her questions.

Gorsuch responded to Roberts’ strategy with skepticism, questioning whether, if the viability cutoff line were dissolved, the justices could ever develop a new “workable standard.”

Of the court’s other two conservatives, Clarence Thomas vigorously challenged the validity of Roe but Samuel Alito was not so clear. Alito appears a definite vote to uphold the 15-week Mississippi ban but perhaps to postpone a final judgment on Roe.

It seemed that if any right to abortion emerges from this case, it would be through the votes of Roberts with the three liberals (who would nonetheless dissent from upholding the Mississippi law), and a fifth vote from Alito or one of the three Trump appointees.

As a lawyer in the Ronald Reagan and George H.W. Bush administrations, Roberts opposed Roe and even urged the Supreme Court to reverse it. But since taking the bench, he has adopted a more cautious stance.

He has voted to uphold abortion regulations, but, in a 2020 Louisiana dispute, cast a vote to strike down a restriction on physicians who perform abortions, based on 2016 precedent with which he had disagreed.

As chief and as a justice near the ideological center of the bench, he has tried to keep it from lurching too far to the right.

He has voiced concerns about public attitudes toward the court and the potential for political taint.

Sotomayor addressed that possibility in harsh terms Wednesday. She referred to remarks from Mississippi sponsors of the abortion ban that suggested they believed the court, with its new justices and cemented conservatism, would welcome the prohibition.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked, adding, “I don’t see how it is possible.”

READ: Transcript of Supreme Court oral arguments in Dobbs v. Jackson Women’s Health

Fellow liberals Breyer and Kagan emphasized the court’s usual regard for precedent, especially when, as in this situation, the court seriously reconsidered Roe’s validity and upheld it in 1992.

“Usually there has to be a justification, a strong justification, in a case like this beyond the fact that you think the case is wrong,” said Kagan. “And I guess what strikes me when I look at this case is that, you know, not much has changed since Roe and Casey, that people think it’s right or wrong based on the things that they have always thought it was right or wrong for.”

From the other side of the ideological divide, Kavanaugh has expressed an interest in turning over the issue to state legislators, which would mean the end of any constitutional right to abortion.

He prefaced one question with the notion that “the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.”

Is a shorter legal viability standard practical?

When the court first established a right to abortion in 1973, it rooted it in the 14th Amendment’s due process clause, which protects a right to privacy.

The justices in Roe acknowledged that the Constitution contains no explicit reference to a right of privacy but said that in a line of decisions dating to the late 1800s, “the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”

The Roe court said the right extends to activities related to marriage, contraception and child rearing, and “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

As Roberts trod toward some position that would undercut but not eliminate that right, he asked Julie Rikelman, representing the Jackson Women’s Health Organization, if his idea was workable.

“If you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice … and why would 15 weeks be an inappropriate line?” the chief justice asked.

Roberts added that he failed to see how the viability cutoff had “anything to do with choice.”

Rikelman countered that, in a practical vein, some women, those in “the most challenging circumstances” farther along in their pregnancies, would be unable to obtain needed medical care. She said that any alternative standard would be “less principled and less workable than viability.”

She also warned that states would likely drop to fewer weeks, such as occurred in Texas, which has an abortion ban after roughly six weeks. The Supreme Court has allowed that prohibition to remain while it assesses the merits of the law’s procedures.

The court in 1973 tried to balance a woman’s interests with those of the fetus and chose viability as a cutoff, it said at the time, “because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.”

Barrett asked about any burden women who cannot obtain abortions would face, in light of the ability to give a child up for adoption or to relinquish parental rights under state law.

Why don’t such options “take care of that problem?” Barrett asked. “It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.”

Rikelman stressed that the abortion right encompasses “bodily integrity” as well as “decisional autonomy and specifically decisions relating to childbearing, marriage and procreation.”

Pregnancy, Rikelman said, “imposes unique physical demands and risks on women and, in fact, has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work.”

Alito tried to poke holes in the justification for the viability cutoff. In past cases, he has sought to limit reproductive rights and might be inclined toward complete reversal of Roe.

But during Wednesday’s session, he sounded as though he was struggling, like Roberts, for an option that was not as definite as those on the far right or left seek, for or against Roe.

At one point Alito asked if “the only real options we have are to reaffirm Roe and Casey as they stand or to overrule them in their entirety?” If he or any other justice were to join Roberts in some attempted middle ground, the result would still halt abortion rights as they exist today.

The question then would be: What is left for the future?

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