Conservatives have been waiting decades for this moment: a transformed Supreme Court on Monday agreed to hear an abortion case that directly challenges women’s reproductive rights tracing to the 1973 Roe v. Wade milestone.
And unlike past times when Roe teetered in the balance, this is not a 5-4 court with the potential to suddenly dash the hopes of Republicans and religious conservatives. This is a 6-3 conservative-liberal bench. If one of the GOP appointees suddenly edges left, as happened before, a five-justice right-wing majority would still exist.
Republicans rued the abortion-rights votes of GOP-nominated Justices Sandra Day O’Connor, David Souter and Anthony Kennedy, all now retired, over the years.
But the current makeup of the court, with three appointees of former President Donald Trump and three other justices who have opposed abortion rights, provides a dynamic that found abortion opponents ecstatic at the court’s announcement and abortion rights supporters trembling.
Abortion has been the single most consistent and contentious subject of Supreme Court confirmations since the early 1980s, when Republican President Ronald Reagan made reversal of the 1973 Roe milestone a mission. Abortion politics have influenced the presidential screening of nominees, senators’ votes and the increasing force of special interest groups in the confirmation orbit.
Republican lawmakers especially have fought to make this moment possible, in statehouses across the country and in the US Senate. Then-Senate Majority Leader Mitch McConnell ensured that the conservative stalwart Justice Antonin Scalia, who died in 2016, would not be succeeded by a liberal. And McConnell then sped through the nomination of Amy Coney Barrett to replace liberal icon Ruth Bader Ginsburg days before last fall’s presidential election.
For decades at nomination hearings, senators and nominees have fallen into a cat-and-mouse routine, as senators on the dais ask questions directed at where an individual truly stood on Roe and nominees avoid revealing anything, particularly at the risk of imperiling the chance of appointment.
All subtly evaporated last fall when then-Senate Judiciary Chairman Lindsey Graham, a South Carolina Republican, said of Barrett, “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 to “pre-commit” on the subject of abortion. A devout Roman Catholic, she was the third appointee of Trump, who vowed to choose justices who would reverse Roe and return the issue to the states.
Barrett strengthened rightward pull on the bench. She also sealed the confidence conservatives expressed, and the dismay from liberals, that a new anti-abortion era was underway.
After months of internal debate on the matter, the justices announced on Monday they would add to their 2021-22 session a dispute over a Mississippi ban on abortions after 15 weeks. The controversy, which would likely be heard in the fall and decided by June of 2022, could eviscerate the heart of Roe v. Wade, which declared women have a constitutional right to end a pregnancy.
That landmark and a 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, effectively prevented bans on pre-viability abortions, that is, before the fetus would be able to live outside the womb. The court placed viability at 23-24 weeks in the 1992 case.
The dispute, Dobbs v. Jackson Women’s Health Organization, marks the start of the most momentous abortion battle since 1992.
The lower US appellate court that rejected the Mississippi law had written, “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban.”
What’s changed
For nearly 30 years, the justices spurned appeals that would have meant such a deep reconsideration of precedent. The court worked around the edges, in recent cases reviewing regulations on clinics and physicians, issues that affected women’s access to abortion but not the core right or viability line.
Newer justices increasingly complained about the pattern. Trump’s first appointee, Neil Gorsuch, wrote last year that in a “highly politicized and contentious arena … we have lost our way.”
But conservatives who voiced an interest in reversing prior decisions on abortion were no doubt unsure whether they would have at least five votes for a major decision.
The addition of Barrett plainly changed the calculus, and at a time when more states have passed bans such as Mississippi’s. Earlier this spring Arkansas adopted a near-total abortion prohibition with no exception for cases of rape or incest.
With Barrett and Gorsuch, Trump appointed Brett Kavanaugh. The other GOP justices who have voted against abortion rights are Clarence Thomas, now in his 30th year and most vigilant in urging reversal of Roe; Samuel Alito, who succeeded centrist-conservative O’Connor in 2006, causing an ideological shift on many dilemmas including abortion; and Chief Justice John Roberts, named in 2005 as a successor to Chief Justice William Rehnquist.
Until last year, Roberts had consistently backed abortion regulations. But in a Louisiana dispute, he provided the fifth vote (with the four liberals at the time) to invalidate a regulation similar to a Texas restriction the court had struck down in 2016.
Roberts wrote that although he disagreed with the prior ruling, he felt bound by it. At the same time, however, Roberts separated himself from the justices on the left by asserting a legal standard that would enhance government leeway to impose restrictions on abortion, for example, through clinic standards or physician credentialing.
As chief justice on a deeply split court in a turbulent era of American politics, Roberts has hedged his own ideological views, seemingly to steady the court and inspire public confidence.
That tendency, along with his dramatic 2012 vote (again with the liberals) to uphold the Affordable Care Act, has provoked criticism from the right wing and some suspicion of how he would ultimately vote on the future of Roe v. Wade.
But conservatives seeking curtailment of abortion rights may not need his vote. With the addition of Barrett, Roberts is no longer at the ideological center of the bench and no longer has the swing-vote power.
And now that the court has decided to reexamine abortion rights, the only question is how far the majority will go to roll back the nearly half-century-old declaration that the constitutional right to privacy covers the decision to end a pregnancy.