Conservative Supreme Court justices have demonstrated a desire to reverse prior decisions on abortion rights. The question, with Chief Justice John Roberts no longer the undisputed swing vote on abortion, is when and how far at least five justices will go to overturn rulings that support a constitutional right to end a pregnancy.
The aims of individual justices, based on their recent writings, range from reversing Roe v. Wade to forbidding clinics from challenging restrictions on behalf of women to relaxing the standard that states must meet to limit women’s access to the procedure.
“Our abortion jurisprudence has spiraled out of control,” Justice Clarence Thomas has written. He is the court’s most consistent critic of abortion-rights rulings dating to the 1973 Roe v. Wade, which made the procedure legal nationwide.
Justice Neil Gorsuch has separately complained that justices’ standards are muddled and said last year, in a “highly politicized and contentious arena … we have lost our way.”
Justice Samuel Alito has attacked decades-old precedent that allows physicians and other third parties to sue states over regulations that might impinge on a pregnant woman’s rights. His position would reduce challenges to state abortion laws.
New internal tensions in the age-old controversy have emerged, as the six Republican-appointed justices on the right wing diverge on curtailing precedent and more sharply clash with the court’s three remaining Democratic-appointed liberals.
The justices could move a step closer to their next chapter as they meet privately on Friday to consider whether to take up Mississippi’s ban on abortions after 15 weeks of pregnancy.
Then again, the newly reconfigured court may want to wait to take any dramatic action on abortion. Multiple related laws are headed its way as states continue to adopt new prohibitions, including the near-total Arkansas abortion ban passed earlier this month with no exceptions for cases of rape or incest.
Arkansas Gov. Asa Hutchinson said he signed that law because it’s a “direct challenge to Roe v. Wade” and said it has a “narrow chance” getting to the Supreme Court.
“That was the whole design of the law,” Hutchinson, a Republican, told CNN’s Dana Bash on “State of the Union” Sunday. “It is not constitutional under Supreme Court cases right now.”
While the number of abortions nationwide has declined over the decades, culturally and religiously fraught state restrictions, and subsequent litigation, have not diminished. Conflicts have deepened on the increasingly conservative Supreme Court. Former President Donald Trump, who named three new justices, had vowed to appoint judges who opposed Roe v. Wade.
If the justices were to take up a 15-week abortion ban and consider reversing decades-old precedent, it would intensify national divisions. Even if the justices ultimately deny the Mississippi petition, the case could give individual justices a chance to issue statements relative to the denial, laying out their arguments for future rollbacks of reproductive rights.
Mississippi officials have appealed a US appellate court ruling that invalidated the 15-week ban because Supreme Court precedent prevents prohibitions on pre-viability abortions, that is, when the fetus would be unable to live outside the womb.
Referring to the high court’s traditional balancing of interests, the appellate court wrote, “Until viability, it is for the woman, not the state, to weigh any risks to maternal health and to consider personal values and beliefs in deciding whether to have an abortion.”
The pending case from Mississippi already reveals signs of conflict among the justices: They have considered but then postponed action on the dispute for nearly six months, listing it for discussion in private sessions yet offering no word on whether they would reject it, as they have similar cases of early-pregnancy abortion bans, or schedule the controversy for oral argument and decision.
Disputes in this area of the law nearly always come down to the vote of a single justice and generate tensions all around.
“In the country, people have very strong feelings,” liberal Justice Stephen Breyer said during oral arguments in a 2020 Louisiana abortion case, “and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong.”
On the current bench, Justices Thomas, 72, Alito, 70, and Gorsuch, 53, have staked out relatively firm ground. Roberts, 66, and Justice Brett Kavanaugh, 56, have voted to ease the legal test covering state regulation of abortion and sent mixed signals on overruling core precedent.
The court’s new, sixth conservative, Justice Amy Coney Barrett, 49, has yet to write on an abortion case. Before joining the bench, she expressed skepticism for reproductive rights.
During her confirmation hearing in October, then-Senate Judiciary Chairman Lindsey Graham, a South Carolina Republican, declared of Barrett, a committed Catholic, “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology.”
Barrett declined in testimony to express her views and said she could not “pre-commit” on the subject of abortion.
On the left side of the bench, Justices Breyer, 82, Sonia Sotomayor, 66, and Elena Kagan, 60, have consistently voted to reaffirm abortion rights and diminish the power of states to restrict women’s access to the procedure.
In urging the justices to hear Mississippi’s appeal of the lower court ruling, state Attorney General Lynn Fitch has asked the court to clarify its standard, to disallow clinic lawsuits on behalf of women and to erase the dividing line for restrictions based on the viability of the fetus.
The Jackson Women’s Health Organization, represented by lawyers from the national Center for Reproductive Rights, countered that for nearly 50 years the Supreme Court has said states may not prevent a woman from ending her pregnancy before the fetus would be able to survive outside her body.
“Before viability,” they wrote, “the State’s interests, whatever they may be, cannot override a pregnant person’s interests in their liberty and autonomy over their own body.”
Where Alito and Thomas want the court to go
In the original abortion touchstone, Roe v. Wade, the justices declared that women have a constitutional right to privacy that covers the decision to end a pregnancy.
Current standards trace to a 1992 landmark, Planned Parenthood of Southeastern Pennsylvania v. Casey, when the court reaffirmed Roe’s declaration that women have a right to abortion before viability, which the justices placed at 23-24 weeks, and forbade government from putting an “undue burden” on the right.
Thomas has been most provocative in urging his colleagues to reconsider those decisions.
“Roe is grievously wrong for many reasons,” he wrote in a dissenting opinion when the court in 2020 struck down a Louisiana abortion regulation, “but the most fundamental is that its core holding – that the Constitution protects a woman’s right to abort her unborn child – finds no support in the text of the Fourteenth Amendment.”
In separate 2019 cases, he asserted, “From the beginning, birth control and abortion were promoted as means of effectuating eugenics” and called the “undue burden” standard from the 1992 Casey decision “an aberration of constitutional law” and “demonstrably erroneous.”
Alito has focused on third-party legal standing, that is, the ability of a party to assert a right on behalf of another with shared interests.
He says that creates conflicts of interest between abortion providers and the women who seek their services; abortion-rights advocates counter that clinics are better positioned to vindicate rights than women who are pregnant and may be especially vulnerable to harassment.
In the Louisiana controversy over credentialing requirements for physicians who perform abortions, Alito wrote: “The idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.” Alito was joined in that portion of his opinion by Thomas and Gorsuch.
In the same case – June Medical Services v. Russo – Gorsuch wrote that the court owed greater deference to state legislators. He also criticized a balancing test used by a court majority in a 2016 abortion case and invoked by liberals in 2020 as “little more than the judicial version of a hunter’s stew: Throw in anything that looks interesting, stir, and season to taste.”
That test, detailed in a 2016 case that struck down a Texas law, requires judges to balance the health benefits that a regulation might offer pregnant women with its potential burden on their right to an abortion.
The 2020 Louisiana case involved a physician restriction similar to the Texas measure. Based on the 2016 case, Roberts provided the fifth vote to liberals to invalidate the Louisiana version. But he, like his conservative brethren, found the standard from the 2016 case flawed.
(He declined to sign the Breyer opinion that was joined by Sotomayor, Kagan and the late Justice Ruth Bader Ginsburg.)
Roberts’ narrower approach would give greater discretion to state legislators and enhance their ability to justify abortion restrictions.
Referring to the 1992 Supreme Court milestone that set out standards, Roberts wrote in the 2020 case, “Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the court.”
And the chief justice, no longer the swing vote on abortion yet still influential, added that trying to do so “would require us to act as legislators, not judges.”
This story has been updated with comments from Arkansas Gov. Hutchinson.