John Roberts and the Path SCOTUS Did Not Take on Abortion

Although the chief justice's incrementalism did not sway his colleagues, his observations about the meaning of a "right to choose" could be relevant in state legislatures.

Chief Justice John Roberts agreed that the Mississippi law at issue in Dobbs v. Jackson Women's Health Organization, which generally prohibits abortion after 15 weeks of gestation, should be upheld. But he argued that the five justices in the majority went too far on Friday by overturning Roe v. Wade, the 1973 decision that said women have a constitutional right to terminate a pregnancy, and Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe's "central holding." Roberts' take on the issue not only points to a judicial path not taken; it raises a crucial question for state legislators as they decide how to exercise the new power that Dobbs gives them to regulate abortion: What does "the right to choose" mean?

Roberts' partial concurrence argues that the majority violated "a simple yet fundamental principle of judicial restraint" by going further than was necessary to resolve the case. He notes that Mississippi initially said the Court could uphold its law without completely renouncing the right to abortion identified in Roe and upheld in Casey. That position is reflected in the way the state framed the main question for the Court when it sought review of the 5th Circuit decision rejecting the 15-week ban: "whether all pre-viability prohibitions on elective abortions are unconstitutional."

After the Court agreed to hear the case, however, Mississippi broadened its argument, urging the justices to hold that the Constitution does not protect a right to abortion at all. "The Court now rewards that gambit," Roberts writes, "noting three times that the parties presented 'no half-measures' and argued that 'we must either reaffirm or overrule Roe and Casey.'" As Roberts sees it, the Court should have stuck with the question as originally presented. "If it is not necessary to decide more to dispose of a case," he says, "then it is necessary not to decide more."

As was apparent during oral argument in Dobbs, Roberts agrees that the "viability" line drawn by Roe and Casey—based on the point at which a fetus can survive outside the womb—never made sense. That line, which is contingent on both medical advances and the quality of local health care, nowadays is generally placed around 24 weeks, making Mississippi's law clearly unconstitutional under the Court's pre-Dobbs precedents. But the Court never offered a satisfying justification for that cutoff, Roberts says, or explained why the rule was necessary to make sure that women have a meaningful right to choose whether to continue a pregnancy.

"For the stage prior to approximately the end of the first trimester," Roe said, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." After that, "the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Finally, "for the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

Casey ditched Roe's "rigid trimester framework," saying the state's concern for maternal health and its "interest in potential life" are both valid reasons for regulating abortion "even in the earliest stages of pregnancy." At the same time, Casey retained what the controlling opinion described as Roe's "central holding," ruling out bans on pre-viability abortions. Under the test established by Casey, states were not allowed to impose an "undue burden" on access to abortion, which included any regulation that "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

In Roberts' view, the focus on "viability" was a mistake from the beginning, as many legal scholars, including several who favored broad abortion rights, argued at the time and continued to argue in the decades afterward. "Roe set forth a rigid three-part framework anchored to viability, which more closely resembled a regulatory code than a body of constitutional law," the chief justice writes. "That framework, moreover, came out of thin air. Neither the Texas statute challenged in Roe nor the Georgia statute at issue in its companion case, Doe v. Bolton, included any  gestational age limit. No party or amicus asked the Court to adopt a bright line viability rule. And as for Casey, arguments for or against the viability rule played only a de minimis role in the parties' briefing and in the oral argument."

Given that background, Roberts says, it is "hardly surprising that neither Roe nor Casey made a persuasive or even colorable argument for why the time for terminating a pregnancy must extend to viability. The Court's jurisprudence on this issue is a textbook illustration of the perils of deciding a question neither presented nor briefed. As has been often noted, Roe's defense of the line boiled down to the circular assertion that the State's interest is compelling only when an unborn child can live outside the womb, because that is when the unborn child can live outside the womb….The viability rule was created outside the ordinary course of litigation, is and always has been completely unreasoned, and fails to take account of state interests since recognized as legitimate."

Roe and Casey not only failed to justify the viability line on moral or legal grounds, Robert says; they did not explain why the rule was necessary to ensure that women had ample opportunity to decide whether to terminate a pregnancy. "Our precedents in this area ground the abortion right in a woman's 'right to choose,'" he says. "The law at issue allows abortions up through fifteen weeks, providing an adequate opportunity to exercise the right Roe protects. By the time a pregnant woman has reached that point, her pregnancy is well into the second trimester. Pregnancy tests are now inexpensive and accurate, and a woman ordinarily discovers she is pregnant by six weeks of gestation."

In support of that last point, Roberts cites a 2017 study that found, based on survey data, that "the mean gestational age at time of pregnancy awareness was 5.5 weeks." Since that was the average, many women realized they were pregnant somewhat later. The overall prevalence of "late pregnancy awareness," meaning at seven weeks or later, was 23 percent. But the study's supplemental graphs show that pregnancy awareness after 15 weeks was rare.

Those findings are consistent with data on the timing of abortions. In 2019, according to data collected by the Centers for Disease Control and Prevention (CDC), just 4 percent of abortions in the United States were performed after 15 weeks. In Mississippi, the share was less than 1 percent.

As Roberts notes, some jurisdictions have enacted laws that "forbid abortions after twenty weeks of pregnancy, premised on the theory that a fetus can feel pain at that stage of development." Even states that generally allow elective abortions with few or no restrictions often limit them after "viability," defined either by medical judgment or by a specific dividing line, typically 24 weeks. Although the former type of law is conventionally described as "pro-life" and the latter qualifies as "pro-choice," they have about the same practical impact. In 2019, according to the CDC's numbers, just 1 percent of abortions in the United States were performed at 21 weeks or later.

The exceptions allowed by state law vary. New York's Reproductive Health Act, for example, allows abortion after 24 weeks when it is "necessary to protect the patient's life or health." Although the law does not define "health," Doe v. Bolton said that medical judgment includes "physical, emotional, psychological, [and] familial" factors as well as "the woman's age," which are "relevant to the wellbeing of the patient" and "may relate to health."

Mississippi's 15-week ban, by contrast, applies "except in medical emergency and in cases of severe fetal abnormality." The law defines "medical emergency" to include pregnancies that could prove lethal or that pose "a serious risk of substantial and irreversible impairment of a major bodily function." Alabama's Pain-Capable Unborn Child Protection Act, which applies after 20 weeks, has a similar "medical emergency" exception.

The specific exceptions obviously can make a crucial difference in rare cases. But by and large, Roberts argues, a law like Mississippi's 15-week ban is consistent with a "right to choose."

The picture looks quite different when you consider "heartbeat" laws that prohibit elective abortions after fetal cardiac activity can be detected, which typically happens around six weeks into a pregnancy. Nationwide in 2019, according to the CDC's numbers, 57 percent of abortions were performed after six weeks. Since some of the rest also would be covered by the "heartbeat" laws, those bans affect a large majority of abortions. And unlike 15-week or 20-week bans, such laws cover a substantial percentage of women who do not yet realize they are pregnant, as indicated by the study that Roberts cites.

That reality seems clearly inconsistent with a meaningful "right to choose." But Roberts thinks the Court should have simply upheld Mississippi's 15-week ban, leaving for another day the question of whether a stricter law would also pass muster. If the Court were later presented with a case involving a six-week ban, however, the question of whether the Constitution protects any right to abortion would have been unavoidable.

In most of the states that are expected to impose or start enforcing new restrictions on abortion, Roberts' reflections on what "the right to choose" means will strike legislators as irrelevant, since they recognize no such right. The general tendency in states where pro-life sentiment is strong is to ban abortion at any stage of pregnancy with narrow exceptions. Legislators in states where pro-choice sentiment is strong likewise will not be much interested in what Roberts has to say, since they generally want to maintain or even expand current abortion access. But for the handful of states in the middle, where anti-abortion legislators must contend with widespread skepticism of blanket bans, line drawing remains a live issue.

Florida, for example, has a 15-week ban that may ultimately be upheld by a state supreme court that will soon have a majority appointed by Republican Gov. Ron DeSantis, who supported that law and has said he also favors a six-week ban. The 15-week ban, which is scheduled to take effect on July 1, would affect less than 4 percent of abortions in Florida, according to the CDC's data.

In deciding whether to go further, Florida legislators will have to keep in mind that most of the state's residents—56 percent, according to a multistate survey that the Pew Research Center conducted in 2014—think abortion should be legal in most or all cases. A University of North Florida survey conducted in February found that 57 percent of registered voters opposed even the relatively modest 15-week ban. But Roberts' logic suggests that legislators can consistently support that law even while rejecting broader restrictions as inconsistent with "the right to choose."

The issues raised by Roberts are also potentially relevant in Pennsylvania. New abortion restrictions are unlikely there in the short term, but that situation could change after this year's elections.

Pennsylvania Gov. Tom Wolf, a Democrat who is in the last year of his second term, supports abortion rights. Although Republicans control both houses of the state legislature, they do not have veto-proof majorities. The Democratic nominee to replace Wolf, Attorney General Josh Shapiro, likewise supports abortion rights. But the Republican nominee, state Sen. Doug Mastriano, welcomes the demise of Roe, describes abortion as "science-denying genocide," and brags about sponsoring a "heartbeat bill" in 2019.

Public support for abortion rights is weaker in Pennsylvania than in Florida. In the Pew survey, 51 percent of adults said abortion should be legal in all or most cases, while 44 percent said it should be illegal in all or most cases. A May survey by Franklin & Marshall College found that 31 percent of registered voters thought abortion should be "legal under any circumstances," while 54 percent said it should be "legal under certain circumstances" and 14 percent said it should be "illegal in all circumstances."

That middle position is ambiguous, since it could include people who favor a six-week ban or even a nearly complete prohibition, as long as it included exceptions. Right now Race to the WH puts Shapiro's chance of winning the governor's race at more than 70 percent. But if Mastriano defies current expectations or Republicans expand their representation in the legislature, new restrictions are possible, in which case defining "certain circumstances" will be suddenly salient. That would make Roberts' observations newly relevant.