What to listen for as Supreme Court weighs the right to abortion and Roe vs. Wade
The Supreme Court’s new conservative majority on Wednesday will weigh the fate of a famous liberal precedent: the Roe vs. Wade decision and the right of pregnant women to choose abortion.
Lawyers for Mississippi will defend a law that bans abortions after 15 weeks, and they will urge the court to go further and overrule the right to abortion set in 1973.
The nine justices and the attorneys will gather in a nearly empty courtroom, but the audio will be livestreamed on the court’s website beginning at 10 a.m. Eastern.
By midday the court will also post a transcript of the arguments in the case of Dobbs vs. Jackson Women’s Health Organization.
Here’s what to listen for during the argument:
Do justices focus on the 15-week limit or on the validity of Roe itself?
The biggest question is whether five conservative justices are ready to overturn the right to abortion now and boldly declare the Constitution offers no such protection to women.
Last year, when Mississippi filed its appeal petition, its lawyers asked the court to rule on whether the state could forbid abortions after 15 weeks. Even if upheld, this limit would not affect 95% of abortions.
But once the court voted to hear the appeal, the state changed course and called on the court to strike down Roe vs. Wade. Do any of the justices on the right sound troubled by the state’s bait-and-switch tactics? Or do some take the opportunity to question whether the 1973 ruling should be overturned?
Does Justice Barrett ask about the role of precedent?
Justice Amy Coney Barrett, the newest to the bench, could decide how far and how fast the court goes to restrict abortion. She is a former clerk to Justice Antonin Scalia, a fierce critic of Roe vs. Wade.
As a law professor at Notre Dame, she wrote often about precedent and argued for overturning past court rulings that were not based on a correct reading of the Constitution.
If she asks about precedent, it may signal she has already concluded Roe vs. Wade was wrongly decided and should be overruled.
In her first year, however, Barrett avoided broad constitutional rulings when cases could be decided narrowly. If she continues that pattern, she could focus on the justification for a 15-week limit.
Does Justice Kavanaugh focus on a narrow ruling?
Along with Barrett, Justice Brett M. Kavanaugh will be key to whether the court rules narrowly on whether states may put tighter time limits on legal abortions or broadly on whether abortions may be outlawed entirely.
In his three years on the court, he has been a reliable but moderate-sounding conservative. He usually asks probing questions of both sides, leaving some doubt as to how he will rule. If he seems interested in only the 15-week limit, it may signal he’s not ready to overturn Roe.
Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch may be ready to overturn Roe vs. Wade now, but they would need Kavanaugh and Barrett to have a majority.
Where does Chief Justice Roberts try to steer the court?
John G. Roberts Jr. is a conservative and skeptical of abortion rights, but as the chief justice, he often seeks incremental rulings that do not make dramatic changes in the law.
He can take control of the court’s opinion if he is in the majority. Will he try to convince his colleagues to focus narrowly on the 15-week limit?
Roberts had reliably joined conservatives in the past to uphold abortion restrictions, but more recently, he switched sides and cited precedent.
Last year, he cast a deciding fifth vote to strike down a Louisiana abortion law on the grounds it was nearly identical to a Texas law the court had struck down a few years before.
The abortion-rights lawyers in the Mississippi case are stressing the importance of precedent, since Roe vs. Wade said women could choose abortion until the 24th week of a pregnancy when the fetus may be capable of living on its own.
Do the liberal justices sound angry?
Sometimes, the best clue on where the court is headed comes from the three liberals.
Justices Sonia Sotomayor, Elena Kagan and Stephen G. Breyer do not have votes to decide the outcome, but they often join in to voice agreement when their conservative colleagues explore a middle-ground position.
If they sound frustrated and angry as the argument proceeds, however, it may mean they have given up on salvaging anything from the decision.
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