Without Promising Alternatives to the 'Viability' Rule, the Supreme Court Seems Inclined to Ditch Its Abortion Precedents

The justices may find it difficult to uphold Mississippi's abortion ban without overturning Roe v. Wade.

The U.S. Supreme Court today considered whether to uphold Mississippi's ban on abortions after 15 weeks of gestation, which would require overturning or revising longstanding precedents saying the Constitution does not allow states to prohibit abortion prior to "viability," the point at which a fetus can survive outside the womb. At least five justices seemed inclined to uphold Mississippi's law, and possibly to go further by ruling that the Constitution does not protect a right to abortion after all.

Before today's oral arguments in Dobbs v. Jackson Women's Health Organization, we knew that six of the current justices either definitely or probably took a dim view of Roe v. Wade, the 1973 decision that said women have a right to abortion under the 14th Amendment, and Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe's "central holding" that "viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions." That did not necessarily mean all of those justices were prepared to renounce both rulings, since the conviction that a case was wrongly decided is just one of several factors the Court is supposed to consider in deciding whether to overturn a precedent. Only one justice, Clarence Thomas, had publicly said the Court should overturn Roe, a view he first made clear by joining the dissent in Casey.

The oral arguments focused largely on whether the Court could replace the widely criticized viability rule with a different dividing line that would be principled and practical. But only Chief Justice John Roberts seemed to be seriously entertaining that possibility.

While Mississippi is urging the Court to overturn Roe and Casey, Roberts said, "what we have before us…is a 15-week standard." If the issue is that "women should have a choice to terminate their pregnancy," he said, "that supposes that there is a point at which they've had the…opportunity to [choose], and 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?"

Jackson Women's Health Organization, the abortion clinic challenging Mississippi's law, itself cast doubt on the workability of alternatives to the viability rule. "There are no half-measures here," its Supreme Court brief says. "Each of the State's purported alternatives would upend the balance struck in Casey and ultimately extinguish 'the woman's liberty to determine whether to carry her pregnancy to full term.'…Upholding the Ban under either 'alternative' rationale the State offers would lead to the same thing: attempts by half the states in the Nation to forbid abortion entirely, and a judiciary left without tools to manage the resulting litigation."

Justice Samuel Alito, who agrees with Thomas that "the Constitution does not protect a right to abortion" and made his disdain for the "arbitrary" viability rule clear, zeroed in on that passage from the clinic's brief while questioning Julie Rikelman, litigation director at the Center for Reproductive Rights. "Your brief [says] the only real options we have are to reaffirm Roe and Casey as they stand or to overrule them in their entirety," he noted. "You say that 'there are no half-measures here.'"

If the Court repudiates the viability rule, Justice Neil Gorsuch asked U.S. Solicitor General Elizabeth Prelogar, "do you see any other intelligible principle that the Court could choose?" Her answer suggested that she does not. "I don't think there's any line that could be more principled than viability," she said. "I think the factors the Court would have to think about are what is most consistent with precedent, what would be clear and workable, and what would preserve the essential components of the liberty interest. Viability checks all of those boxes, and has the advantage as well [of] being a rule of law for 50 years."

Justice Brett Kavanaugh recited a list of precedents the Court has overturned, suggesting that the passage of time should not protect decisions that a majority of justices now view as "egregiously wrong," which is how Mississippi Solicitor General Scott Stewart described Roe and Casey. "If you think about some of the most important cases, the most consequential cases in this Court's history, there's a string of them where the cases overruled precedent," Kavanaugh noted. He also repeatedly suggested that decisions about abortion regulation should be left to the states.

Mississippi's position, Kavanaugh said, is that the Court "should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life," because "they say the Constitution doesn't give us the authority" to decide such issues. Kavanaugh seemed to agree. "Why should this court be the arbiter?" he asked. "There'll be different answers in Mississippi and New York, different answers in Alabama than California, because there are two different interests at stake and the people in those states might value those interests somewhat differently."

Justice Amy Coney Barrett, who said stare decisis "is obviously the core of this case," repeatedly asked about "safe haven" laws that shield women from liability when they leave a baby at a hospital or fire station. Mississippi argues that the proliferation of those laws represents a new circumstance that supports overturning Roe and Casey.

Barrett also asked Stewart whether ruling in Mississippi's favor would jeopardize other precedents mentioned by Justice Sonia Sotomayor involving contraception, sodomy laws, and gay marriage. Those rulings, Stewart assured Barrett, established "clear rules that have engendered strong reliance interests and that have not produced negative consequences or all the many other negative stare decisis considerations we pointed out."

These comments and questions do not bode well for anyone who hoped that the Court would retain the essence of its abortion precedents even if it let Mississippi's law stand. Given the unsatisfying justification for the viability rule and the lack of promising alternatives, a majority of the justices may well conclude that "half-measures" won't suffice.