By Nina Totenberg
The right to an abortion in the United States appeared to be on shaky ground as a divided Supreme Court heard arguments Wednesday on the fate of Roe v. Wade, the court’s 1973 decision that legalized abortion in the United States.
At issue in Wednesday’s case — Dobbs v. Jackson Women’s Health Organization — was a Mississippi law that bans abortion after 15 weeks of pregnancy. Until now, all the court’s abortion decisions have upheld Roe‘s central framework — that women have a constitutional right to an abortion in the first two trimesters of pregnancy when a fetus is unable to survive outside the womb, roughly 24 weeks. But Mississippi asked the Supreme Court to reverse all its prior abortion decisions and return the abortion question to the states.
The court’s three newest justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all Trump appointees — appeared to signal they are ready to side with Mississippi — but it wasn’t immediately clear if all of them would strike down Roe, as the state of Mississippi has asked.
The new six-justice conservative supermajority seemed to fall into two camps. In one were Justices Clarence Thomas, Samuel Alito and Gorsuch apparently willing to reverse Roe and perhaps other decisions based on a right to privacy. And in the other camp, the court’s other three conservatives, reluctant to go beyond abortion.
Even on abortion there appeared to be some divisions, the question being whether dismembering the court’s abortion jurisprudence would be a one-step dance — outright reversal — or something short of that, more a two- or three-step dance that would play out over several years.
Chief Justice John Roberts, a fellow conservative, focused on on abortion only, and on the viability line, not reversal.
“Why would 15 weeks be an inappropriate line? Viability, it seems to me, doesn’t have anything to do with choice, but if it really is an issue about choice, why is 15 weeks not enough time?” he asked Julie Rikelman, who represented the clinic bringing the case.
Rikelman replied: “If the court were to move the line substantially backwards — and 15 weeks is nine weeks before viability, your honor — it may need to reconsider the rules around regulations because if it’s cutting the time period to obtain an abortion roughly in half, then those barriers are going to be much more important.”