On Wednesday, the Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization, a case that presents the six conservative justices with the chance to end the right to abortion access in America after fifty years of trying. Over the course of two hours, they made perfectly clear their eagerness to overrule Roe v. Wade and Planned Parenthood v. Casey, and to rob millions of women of their bodily autonomy in the process. The only question is which justice will get the honor of writing the majority opinion, ushering in a new era of constitutional law in which the human dignity of people who may become pregnant depends on how generous their state lawmakers are feeling about doling it out.
Dobbs is about Mississippi House Bill 150, a 2018 statute that bans abortions conducted after 15 weeks, labeling them “barbaric” and “dangerous for the maternal patient” and “demeaning to the medical profession.” (This is perhaps the only context in which politicians in a state with a maternal mortality rate well above the national average have expressed any interest in protecting expecting mothers from harm.) The law is a flagrant, unapologetic violation of Roe and Casey, which protect the right to abortion care until the fetus is medically viable—somewhere around the 24th week of gestation. In Dobbs, Mississippi has asked the Court to dispose of even this modest safeguard of reproductive rights, excoriating the fragile compromises of Roe and Casey as “unprincipled decisions” that have “poisoned our national discourse.”
The winding path by which Dobbs arrived at the Court was already an ominous sign for supporters of abortion rights. When Mississippi asked the justices to take the case way back in June 2020, it expressly declined to challenge Roe and Casey, limiting itself to a narrower effort to chip away at the “viability” standard. Three months later, however, the death of Justice Ruth Bader Ginsburg and the confirmation of Justice Amy Coney Barrett created a sudden six-conservative supermajority, presenting emboldened anti-choice activists with an opportunity they could not resist. Sure enough, by the time the Court took the case in May 2021, Mississippi was calling for it to overrule Roe and Casey altogether. All that had changed in the interim was the anti-choice movement’s confidence that victory was within reach, and the conservatives justices’ belief that they had the votes to deliver it.
On Wednesday, the Court’s Fox Newsiest justices left little doubt about where they stand. Justice Samuel Alito did not even pay lip service to the sanctity of precedent, arguing that the Court is always free to overturn a case that was “egregiously wrong at the moment it was decided.” Justice Clarence Thomas, who voted to overturn Roe in Casey 30 years ago and has been pining for another chance ever since, pointedly pressed the lawyers to explain which part of the Constitution, exactly, protects the right to abortion—part of his pedantic insistence that a 250-year-old document littered with vagaries cannot protect rights that do not appear verbatim in its text. Although Justice Neil Gorsuch was comparatively quiet, the few questions he asked suggest his belief that if Dobbs gets rid of the much-maligned viability standard, the Court has little choice but to get rid of Roe and Casey, too.
The fate of abortion access, then, comes down to Chief Justice John Roberts and Justices Barrett and Brett Kavanaugh, who are just as eager as their conservative colleagues to enshrine their ideology into law, but occasionally more cautious about how quickly to do so. Kavanaugh and Barrett, however, seemed to have arrived where Alito, Thomas, and Gorsuch have been waiting. Kavanaugh, for example, downplayed the significance of overturning Roe by reasoning that it would simply make the Court “scrupulously neutral” with respect to abortion—“neither pro-choice nor pro-life.” This is a polite way of stating that states that do not care about the bodily autonomy of pregnant people should feel no further obligation to uphold it.
Barrett took a different tack, focused on how circumstances have purportedly changed since Roe was decided: Safe haven laws, for example, allow women to easily give up their children for adoption, rendering irrelevant the choice not to carry a child to term in the first place. “Insofar as you focus on the ways in which forced motherhood would hinder women’s access to the workplace and to equal opportunities,” Barrett asked the clinic’s counsel, “why don’t the safe haven laws take care of that problem?” The response from attorney Julie Rikelman, who argued the case on behalf of Mississippi’s lone abortion clinic—that childbirth poses serious health risks to women, who should be able to choose whether to undertake them—was eminently reasonable. But like most questions asked at oral argument, Barrett’s question was a statement of her own conclusion: The safe haven laws are indeed enough.
For the conservative justices, overturning Roe is not a technical legal question. It is a moral crusade they’ve spent decades positioning themselves to win.
Of the conservatives, Roberts seemed the most interested in striking a compromise that weakens Roe while leaving it in place. But a Court with six right-wing ideologues affords the coalition a margin for error, rendering the chief justice’s occasional incrementalist streak a casualty of the conservative legal movement’s success. If five of his colleagues are indeed ready to take the plunge, any trepidation he may feel would be irrelevant to the result.
Even if some unexpected alliance emerges to save Roe and Casey this time around, the unmistakeable takeaway from oral argument is that at this Supreme Court, the right to abortion care in America is dead. One of the most revealing moments came when Kavanaugh delivered a soaring soliloquy in which he rattled off some of the Court’s most revered decisions in which it overturned its own precedent: Lawrence v. Texas, which affirmed the right to sexual intimacy; Obergefell v. Hodges, which affirmed the right to marriage equality; and, of course, Brown v. Board of Education, which overruled the “separate but equal” principle announced in Plessy v. Ferguson on the grounds that racial segregation is inherently unequal.
“These are some of the most consequential and important in the Court’s history,” Kavanaugh mused. And in those instances, if the justices had stubbornly clung to their outdated and wrong decisions, he continued, “the country would be a much different place.”
Kavanaugh’s framing cleanly illustrates why overturning Roe and Casey, either now in Dobbs or very soon, is the inevitable outcome: For conservatives, this is not a technical legal question, but a moral crusade that they’ve spent decades positioning themselves to win. On the campaign trail, then-candidate Donald Trump famously pledged to appoint Supreme Court justices whose confirmations would “automatically” overturn Roe. Five years later, Thomas and Alito and Gorsuch and Barrett and Kavanaugh do not view following through on that promise as an abdication of their judicial duties. It will be a once-in-a-generation act of tremendous courage. They cannot wait to be rewarded for it.
