If there were any doubts about how conservative the Roberts Court has become, one need only listen to the oral arguments last week in Dobbs v. Jackson Women’s Health Organization, a case that fundamentally challenges the constitutionality of Roe v. Wade.
The only conservative justice who appeared to have any appetite for preserving some version of the right to terminate a pregnancy was Chief Justice John Roberts. The tenor of questions from the remaining five conservative justices however suggested they saw little reason to uphold Roe. Even if Roberts, the consummate institutionalist, can ultimately persuade another conservative to join him in finding a putative middle ground to preserve the court’s legitimacy, the likely result would still be an opinion that preserves Roe in name only.
In short, Roe will either be explicitly overturned or its core holding, that states may not prohibit abortions before viability, will be eviscerated, making Roe as good as dead.
At issue is the constitutionality of a Mississippi law that bans abortions at 15-weeks’ gestation, two months before viability, when a fetus can survive outside the womb. That the court was willing to consider the constitutionality of a law in direct conflict with precedent demonstrates how much the court has changed since Roe was decided in 1973 and reaffirmed in Planned Parenthood v. Casey in 1992.
It’s dispiriting enough that Roe will likely fall, but the lack of imagination and empathy of the 6-3 conservative majority portends a chilling future for the marginalized. At best, the conservative justices are oblivious to the struggles they face. At worst, they are callously indifferent.
Justice Kavanaugh, for example, suggested it would be “scrupulously neutral” for the court to leave the issue of abortion to legislators and voters. That would be anything but neutral. It would eviscerate a fundamental liberty interest on which individuals have relied for nearly 50 years, leading to a certain or likely ban of abortion in 26 states.
Kavanaugh’s “scrupulous” neutrality blithely disregards the devastating impact this would have on people disproportionately affected by abortion restrictions — low-income individuals, people of color, the LGBTQ community, immigrants, those in rural communities and people with disabilities — who would be forced to bear children in states with few safety nets for pregnant people and children. Mississippi, like 13 other states with extensive abortion restrictions, invests the least in the health and well-being of women and children. As a result, it has the nation’s highest infant mortality rate and the 15th highest maternal mortality rate. To quote Justice Sotomayor, such “neutrality would allow states to say, in effect, “we can choose . . . to physically complicate your existence, put you at medical risk, [and] make you poorer.”
Even more jarring was Justice Amy Coney BarrettAmy Coney BarrettSome good news in the battle to rebalance the courts If Democrats ‘pack the court,’ will it protect a woman’s right to choose? Biden Supreme Court study panel unanimously approves final report MORE’s suggestion that “safe haven” laws eliminate the need to uphold Roe because they allow women to escape the burdens of parenthood by abandoning newborns with legal impunity. Her argument ignores the fact that adoption was possible when Roe was decided. Worse, it cruelly disregards the physical and psychological burdens of enduring the riskiest stages of pregnancy, birthing alone and abandoning a child. That the only mother on the court minimized bodily integrity concerns by glibly comparing vaccines to forced pregnancy and birth is nothing short of shocking. Vaccines pose minimal risks and offer significant health protections to both the recipient and the community. In contrast, late-term pregnancy and birth dramatically heighten health risks for pregnant people, with no corresponding health benefit. In Mississippi, the risks of giving birth are 75 times greater than the risks of having a pre-viability abortion, especially for women of color.
Justice Thomas revealed his own cruel disregard for the marginalized by focusing on criminalizing pregnant people for drug use. In asking whether the state has an interest in prosecuting such behavior, he seemed unconcerned with the discriminatory impact. People of color are more likely to be screened and reported for drug use, and low-income individuals and Black and brown people are arrested at disproportionately higher rates for bad pregnancy outcomes. His indifference to these inequities is odd when just three years ago he cited the “considerable racial disparity” in abortion rates, with Black women undergoing abortions at 3.5 times the rate of white women. Thomas’s clear support for fetal personhood ignores the ineffectiveness and harm of incarcerating people for criminal neglect during pregnancy. These laws deter women, especially those of color, from seeking prenatal care, thereby threatening fetal and maternal well-being.
Even Chief Justice Roberts demonstrated a callous indifference to the vulnerable by stating that Mississippi’s 15-week ban is “not a dramatic departure” from viability because women would still have a “fair choice” and the “opportunity” to choose. It ignores the many barriers that make “choice” ephemeral. Women may not realize they are pregnant before 15 weeks, especially if they are young, have never been pregnant or if they experience irregular cycles. They might experience a host of unexpected life changes: job loss, relationship failures, family illness, or medical complications. Legal hurdles may impede access to abortions before 15 weeks, which are only intensified by financial barriers, the inability to take time off of work, and/or childcare burdens.
Roberts’ clear effort to save the court from the stench of politics dismisses the impact of losing two months of decision making and demonstrates how little he knows or cares about what it means to be poor and disenfranchised.
Whether Roberts can ultimately achieve the “compromise” he desperately seeks remains to be seen. But two things are certain: The conservatives care little for the plight of the marginalized, and reproductive rights are on life support. Even if Roe is not officially overruled, eliminating the viability line will create a slippery slope with no friction against nearly all abortion bans, dramatically heightening the inequities of our society. We should hope the court explicitly pulls the plug on the abortion right, rather than misleading the public into thinking it has any interest in keeping it alive.
Either way, the conservative majority’s indifference to inequities will not end with the battle over abortion; it will become a defining feature of this court.
Sonia M. Suter is a George Washington University Law professor and the founding director of the Health Law Initiative. Her scholarship focuses on issues at the intersection of law, medicine, and bioethics, with a particular focus on reproductive rights.