We Are Witnessing the End of “Roe v. Wade”

We Are Witnessing the End of “Roe v. Wade”

We Are Witnessing the End of Roe v. Wade

If there is one lesson to be learned from yesterday’s Dobbs hearing, it is that the Supreme Court will gut abortion rights, one way or another.

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The Supreme Court heard oral arguments yesterday in Dobbs v. Jackson Women’s Health Organization. The case revolves around a Mississippi ban on abortions after 15 weeks of gestation and represents such a direct challenge to abortion rights that Mississippi Solicitor General Scott Stewart opened his argument by asking the court to overturn Roe v. Wade and Planned Parenthood v. Casey, the two chief cases that enshrine abortion rights in this country. Stewart claimed that these cases “haunt our nation.”

Given the conservative majority on the court—engineered by Senator Mitch McConnell—most people expect Mississippi to prevail one way or another. The six conservatives will likely allow Mississippi’s ban to stand, in violation of both Roe and Casey, which allow abortions up to the point of viability (that is, when a fetus can survive outside of the mother’s womb, which occurs at 22 to 24 weeks). The open question is whether the conservatives will formally “overrule” those cases, as Stewart asked them to, voiding all legal abortion rights, or if the justices will invent some new 15-week (or, who knows, 12-week or 10-week) standard that allows them to argue that Roe and Casey have been “preserved” while gutting many of the legal protections those cases stand for.

Clarence Thomas, Samuel Alito, and Neil Gorsuch all appear to have embraced a Fyre Festival approach of “let’s just do it and be legends.” They seem to be willing to destroy abortion rights outright. But Chief Justice John Roberts, Amy Coney Barrett, and alleged attempted rapist Brett Kavanaugh all appear to be invested in finding some way to overturn the fundamentals of Roe without having to write it that way. Most of the arguments involved those three trying to figure out how to give Mississippi some version of what it wants—at a minimum, a 15-week ban—while still being lauded by the media as “centrist” or “reasonable” or whatever doesn’t result in boxes of coat hangers being sent to them in the mail.

As per usual, Kavanaugh’s questions were the most transparently self-serving and intellectually weak. Kavanaugh used his time to try to absolve the Supreme Court of responsibility of deciding the fate of abortion rights, should it overrule Roe. In his framing, abortion should be decided by the states, while the Supreme Court remains “neutral” on the competing rights between the pregnant person and the fetus. This is a Supreme Court justice whose entire raison d’être is to shift responsibility away from his own actions.

There are some obvious problems with this approach. First, the Supreme Court should not remain “neutral” on the issue of human or civil rights. Either women and pregnant people have rights to their own bodies, or they don’t—“neutrality” on that question is not an option. One doesn’t need a law degree to understand this; just look at any other right. Nobody thinks the court should remain neutral on the question of whether there is a “right” to free speech or the free practice of religion. Indeed, Kavanaugh’s wished-for neutrality on whether women and pregnant people have control over their own uteruses stands in stark contrast to his belief that men have a “right” to nearly unfettered access to firearms. Kavanaugh knows that by overturning Roe v. Wade, the court will be taking away a right, that the whole point of rights is that they are not subject to the whims of state legislatures. He’s just counting on the media not to know that.

The second, equally obvious flaw with Kavanaugh’s frame is that it assumes that the fetus has rights, which would be a new thing in American history. I bet Kavanaugh and his conservative brethren would be quick to back off this grant of fetal rights if it came to a right to citizenship, a right to health care, or a right to an education. People like Kavanaugh are only interested in granting fetal rights when those rights can be used to diminish the rights of living women.

While making these transparently bad arguments, Kavanaugh did provide a bit of gallows humor in the form of indirectly making Susan Collins look either like a complete fool or a bad-faith liar, or both. Many will remember that Collins famously defended Kavanaugh’s respect for Supreme Court precedent before she voted to confirm him. It was therefore hilarious, to me at least, that it was Kavanaugh who made the most strident argument against respecting precedent and in favor of overturning old cases. Kavanaugh took it upon himself to list a bunch of cases where the court overruled past precedent and argued that the country is better off for it. Kavanaugh made the argument Collins promised he would not: that precedent should be overturned merely because the current court thinks an older court got it wrong.

Of course, Kavanaugh always just offers the remedial version of conservative logic. He is a Saturday Night Live parody of a conservative intellectual, the bro who lacks the subtlety of the real deal. A more advanced lesson was provided by Amy Coney Barrett. She tried to reframe the abortion question around parenting, arguing that the burdens of being a parent have been lessened by the availability of “safe haven laws”—laws that allow women to give their babies up for adoption seamlessly—which she claims allow women to decouple childbearing from childrearing.

Just so we’re all clear about what Barrett is saying: She effectively argued that the fact that you can easily drop an infant at a firehouse or police station—or, hell, put it in a basket and leave it in a clump of bulrushes—should change the court’s calculus on whether abortion is a right. You could almost hear the ancient Egyptian version of Barrett’s exegesis: “Pharaoh’s order that all first-born male Hebrews should be killed is no problem, because Jochebed can always put a kid in the Nile and pray things work out for the best.”

The reason Barrett is making this monstrous argument is the “undue burden” standard that was put forward in 1992 under Planned Parenthood v. Casey. That standard means that, before a fetus’s viability, the state can restrict abortions if those restrictions do not place too many hurdles in front of those trying to access their constitutional rights. Conservatives have already poked holes in that standard, but Barrett would eviscerate it by arguing that an outright ban on abortions after 15 weeks is not an undue burden on those seeking an abortion because they not only can get one before 15 weeks but, if they miss that window, they can also give the baby away once they carry it to term, with no additional consequences.

To agree with Barrett, all you have to do is gloss over the 25 or so weeks a pregnant person will be forced to incubate a fetus, against her will, for no compensation, if the Mississippi ban is allowed to stand. And you have to overlook childbirth—an experience so intensely hard and laborious that most men would demand cash prizes. That seems quite burdensome to me, regardless of whether Barrett is willing to personally adopt the child (she’s not) after the woman goes through forced labor.

Still, at least Barrett, unlike Kavanaugh, is willing to work within the confines of established law to get the forced-birth outcome she wants. For the true master class in conservative thought, you have to go to the chief, John Roberts.

Roberts’s questions were all variations on the theme of “what’s the big deal?” Currently, the law allows abortions up until around 22 to 24 weeks. Since the Mississippi law restricts abortions to 15 weeks, Roberts wanted to know how big a difference those seven to nine weeks make. This line of questioning led to my pick for the most infuriating part of the oral arguments: Roberts asked Julie Rikelman, the lawyer from the Center for Reproductive Rights who was arguing the case on behalf of the abortion provider, if there is any “evidence” that women are harmed by having their rights to their own bodies cut off at 15 weeks instead of at the current fetal viability standard.

Oh boy, did Rikelman have evidence. You could live your whole life and never be as prepared for a question as Rikelman was for that one. She unloaded, respectfully of course, about the specific challenges faced by women who seek abortions after 15 weeks. She noted that these women are often young and least able to recognize the signs of pregnancy. She noted that they are often dealing with massive changes in economic circumstances (often the end of the relationship that caused the pregnancy in the first place). She noted that they are disproportionately poor and need to save up money or finagle time off work to be able to access reproductive services. She answered his question in every way possible.

And then Roberts brushed her off. In response to her evidence, he said, “Putting the data aside”—and then argued that these problems are exactly the same ones that women have, and overcome, under the current viability standard. He asked for evidence, received it, and then ignored it because the evidence didn’t fit his preferred outcome. Remember, folks, John “putting aside the data I just literally asked for” Roberts is the conservative justice the mainstream media likes to portray as the reasonable one.

We’ve seen this version of Roberts before. This is the same version that ignored evidence that bad things would happen if unfettered dark-money contributions flooded our electoral system when he heard Citizens United—all so he could reach his preferred outcome of allowing that money into the system in. This is the same version that ignored evidence that Republican states would gut voting rights—all so he could reach his preferred outcome in favor of voter suppression in Shelby County v. Holder. This is the same version that ignored evidence that state legislatures would gerrymander away democracy—all so he could reach his preferred pro-gerrymandering outcome in Rucho v. Common Cause. This is John Roberts, a justice who never ever lets evidence get in the way of his ideology, even when he’s the guy asking for evidence.

As in Citizens United, Shelby County, and Rucho, we know what will happen to abortion rights when the court gets around to deciding Dobbs in June of next year. While all six conservatives have different, gobbledygook reasons for affirming that Mississippi abortion ban, affirming that ban is what they agree on. Whether they go all the way and formally overturn Roe (as Thomas, Alito, and Gorsuch want to) or whether they functionally overturn it by removing the fetal viability standard (and leaving the timeline up to states) is kind of a red herring. Their point will be that the Roe is no longer the legal standard for abortion rights.

Should they go the latter route, I’m sure that their opinion affirming an abortion ban so extreme it would have been laughed out of court five years ago will include a grand pronouncement about the narrowness of the ruling. As in other cases where conservatives take something away, they’ll talk a lot about what their ruling will not do: how it won’t mean that states will quickly move from 15 weeks to zero weeks, how it won’t lead to unlicensed abortions in back alleys, how it won’t lead to fresh attacks on other rights like contraception.

And the conservatives will be wrong. They will be proven wrong almost immediately. Kavanaugh can lie to the media and Barrett can lie to women and Roberts can lie to himself, but the lived experience of women, girls, and pregnant people will never fit the self-serving narratives of conservative Supreme Court justices. One in four women will get an abortion in her lifetime. The justices can’t change those facts by simply ignoring them.

Reproductive rights are human rights, and taking away those rights can only lead to suffering and pain. But that is the Roberts Court’s legacy: one of suffering, one of pain, and one that future generations will have to struggle to overcome.

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Katrina vanden Heuvel
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