Abortion arguments: the justices’ most telling questions

On December 1, the U.S. Supreme Court heard oral argument in Dobbs v. Jackson Women's Health Organization. I represented 154 economists who submitted an amicus brief in support of Jackson Women's Health Organization summarizing the research demonstrating the impact of abortion access on women's lives. After hearing the arguments, it appears that Roe v. Wade's and Planned Parenthood v. Casey's days are likely numbered, or at least the viability standard they espouse. I highlight below the most telling questions posed by each justice, along with a brief "too long; didn't read" summary of their positions.

ANTI-ROE & CASEY STALWARTS

Justice Clarence Thomas

tl;dr: I never thought the Constitution protected the right to abortion and I still don't.

Justice Thomas opened the morning by asking Mississippi Solicitor General Scott Stewart whether when conceptualizing the right to abortion: "Does it make a difference if we focus on privacy, autonomy or abortion?" He repeated this refrain throughout the day, signaling his view that it makes no difference which of these concepts are invoked because none of them are explicitly written in the Constitution. Indeed, Justice Thomas, who is the only sitting justice who also served on the Casey court in 1992 (he dissented then), went on to explain that he finds the right to abortion "confusing" because it is not "written" in the Constitution -- unlike more explicit rights such as the "Second Amendment."

His comment ignores the long line of unwritten rights and concepts that have been read in to the Constitution -- something Justice Sonia Sotomayor later addressed, for example, the idea that the Supreme Court interprets the Constitution (Marbury v. Madison) and the right to choose whom to marry (Loving v. Virginia). It also ignores that the contours of the Second Amendment are anything but clear, as shown by continued litigation around it -- including this term's New York State Rifle & Pistol Association Inc. v. Bruen.

Justice Samuel Alito

tl;dr: Precedent must fall when it is wrong.

Justice Alito's questions made clear that he is willing to dismiss entirely the role of stare decisis when it comes to Roe and Casey. Showing his lack of regard for Roe and Casey as precedent, Justice Alito asked counsel for Jackson Women's Health Organization, Julie Rikelman of the Center for Reproductive Rights, to "suppose we were considering [the right to abortion] for the first time" in engaging with his questions. He also attacked the application of stare decisis to wrongly decided precedent, invoking Plessy v. Ferguson and asking U.S. Solicitor General Elizabeth Prelogar: "Is it your argument that a case can never be overruled simply because it was egregiously wrong?"

Justice Neil Gorsuch

tl;dr: Viability is out, is there another standard that could work?

The viability standard espoused by Roe and Casey dictates that the state may not prohibit abortion prior to the point where a fetus is independently viable, which is generally considered to be 24 weeks. Justice Gorsuch seemed very open to imposing a new standard other than viability. First, he asked Rikelman about applying the undue burden standard. But undue burden is the standard applied to evaluate pre-viability regulations -- not pre-viability bans like the one at issue (such bans were, prior to this case, considered per se unconstitutional). He also posed several questions to Prelogar inquiring (hypothetically of course) "if this court will reject the viability line," if there is some other alternative line or number of weeks that "would be principled."

ROE & CASEY DEFENDERS

Justice Stephen Breyer

tl;dr: If we overturn Roe and Casey , the Supreme Court will lose its legitimacy.

Justice Breyer made clear that he would be voting to retain Roe and Casey on stare decisis principles. He warned: "To overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the court's legitimacy beyond any serious question."

Justice Sonia Sotomayor

tl;dr: If the Supreme Court loses its legitimacy, it may never recover.

Justice Sotomayor took Justice Breyer's concerns a step further, making the case that overturning would irreversibly harm the Supreme Court's credibility. She asked: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" The word "stench" seemed carefully chosen to jar her overturning-leaning colleagues and awaken to them to the possibly existential decision before them. No stranger to directness, Justice Sotomayor also called into question the so-called "science" advanced by Mississippi and its amici regarding "fetal pain," describing that science as a "fringe" view by a "gross minority of doctors" that does not meet the Daubert standard.

Justice Elena Kagan

tl;dr: Why are we revisiting this if nothing has changed?

Justice Kagan was relatively quiet during the argument -- but it would be a mistake to assume that her quietness revealed a mind not quite made up. Questioning Stewart, she noted, "Not much has changed since Roe and Casey, ... people think it's right or wrong based on the things that they have always thought it was right and wrong for." Moreover, she added, there has been "50 years of water under the bridge" or 50 years of reliance since then. Her question implies that there is nothing new about Roe and Casey -- and therefore no reason to revisit them now.

CLOSELY WATCHED ONES

Chief Justice John Roberts

tl;dr: Is there a middle ground?

Ever the (purported) consensus builder, Chief Justice Roberts appeared to be trying to maintain some abortion right while drawing the final line for that right somewhere other than viability. Chief Justice Roberts proffered replacing the viability standard with a 15-week line -- which he described as "not a dramatic departure from viability." As Chief Justice Roberts struggles to maintain the legitimacy of his court, he may be looking for a way to appease some of his colleagues by handing them an abortion victory while avoiding a complete evisceration of Roe and Casey.

Justice Amy Coney Barrett

tl;dr: Women don't need abortion access anymore.

Justice Barrett asked whether the passage of safe-haven laws have changed the landscape since Casey, such that prior arguments about the need for abortion are outdated and the data showing impact of abortion access on women's lives are overstated. Safe-haven laws allow mothers to relinquish parental rights and surrender babies without fear of prosecution at "safe havens," such as fire stations. Justice Barrett's question implies that because such laws prevent the harm of "forced parenting," they obviate the need for abortion access. As pointed out by Rikelman and Prelogar, adoption, which also prevents "forced parenting," has long existed, but has not eliminated the need for abortion. Nor do adoption or safe-haven laws address the bodily autonomy necessarily invaded by forcing women to carry a pregnancy to term.

Justice Brett Kavanaugh

tl;dr: Precedent doesn't mean anything to me; I do what I want.

Despite describing Casey during his confirmation hearings as "precedent on precedent" which suggested that it may be some kind of "super-precedent," Kavanaugh took a very different view during argument. While questioning Rikelman, Kavanaugh described several of the "most consequential and important" Supreme Court cases as cases that overturned prior precedent, including Brown v. Board (which overturned Plessy v. Ferguson), Baker v. Carr (overturned Colegrove v. Green), Lawrence v. Texas (overturned Bowers v. Hardwick), and Gideon v. Wainwright (overturned Betts v. Brady). The implication of his question is that there is nothing all that special about precedent, and for the right reasons, any case can be overturned.

What Kavanaugh failed to mention though, and which was pointed out by Prelogar in a later colloquy with Justice Sotomayor, is that in most of the cases he referenced, the overruling case found a new constitutional right or protection that was previously held not to exist. This is meaningful because there is a certain logic to expanding constitutional protections versus restricting them. That is, one can imagine one set of justices scouring the Constitution and failing to find a particular right, only to later have a new set of justices later locate the "missing" rights. In order to overturn Roe and Casey though, you'd have to entertain that despite one set of justices finding a constitutional right, a subsequent set can come along and deny it ever existed. Doing so opens the entire exercise and construct of constitutional interpretation up to ridicule -- where did the constitutional right go? How could it disappear? 