- The Supreme Court heard oral arguments for a major case about abortion rights on Wednesday.
- The challenge, brought by Mississippi, could impact the landmark case Roe v. Wade.
- Experts say that if the court sides with Mississippi, it will undermine the core holdings of Roe.
The Supreme Court on Wednesday seemed willing to erode abortion rights in the United States that were guaranteed nearly 50 years ago under the landmark ruling, Roe v. Wade.
The nine justices heard two hours of oral arguments for a major case about a Mississippi law that bans abortions after 15 weeks of pregnancy, challenging what's commonly referred to as the viability standard set in Roe, which is that states cannot prohibit the procedure before roughly 24 weeks.
Through their questioning, the court's six conservative justices appeared open to upholding the Mississippi law. Justice Samuel Alito said "the fetus has an interest in having a life," Justice Brett Kavanaugh mentioned whether the court should have a neutral position on the issue and Chief Justice John Roberts questioned the viability mark.
Mississippi has directly asked the court to overrule Roe and another major 1992 decision, Planned Parenthood v. Casey, which established that states cannot impose an "undue burden" on abortion rights. The court's three liberals raised concerns about reversing decades-old precedent.
"Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" Justice Sonia Sotomayor said. "I don't see how it is possible."
Whether the court will uphold Mississippi's law and gut Roe remains uncertain. A decision will be handed down by next June.
Before Wednesday's arguments, Insider spoke with legal scholars to discuss the ways in which the court could decide. The bottom line is, they said, that if the court sides with Mississippi, it will undermine the heart of Roe.
Here's what each expert said, edited for length and clarity.
Mary Ziegler, professor at Florida State University College of Law
If the Supreme Court doesn't say they're overruling Roe, they will have rewritten Roe and telegraphed that they're going to overrule Roe. So whether the court admits that that's what it's doing or not, it's going to be on the road to doing that. And it's going to have made it a lot easier for states to pass, not just modest restrictions on abortion, but pretty sweeping ones.
Obviously the biggest thing to take away is just that whatever the court does, Roe will never be the same and it's worth noting that. There's no real middle ground outcome if the court upholds the Mississippi law. At the same time, if something of Roe is left, that may still matter. So I think threading that needle and making sure people understand that is what's important.
Josh Blackman, professor at South Texas College of Law
Anything is possible. The court could overrule Roe and Casey. The court could stop short of those decisions. The court could simply say the 15-week abortion ban is fine, we don't have to decide anything else. It can write an incoherent opinion that doesn't even address Roe and Casey. There are a million possibilities.
Even if the court says, 'We're not overruling Roe,' they still might be doing it anyway. The court might just lie about it and say, 'Well, we're not overruling Roe. We hold that a 15-week abortion ban is fine.' That's not true. Under Roe and Casey, 15 weeks should not be fine to support the point of viability. So the court can just lie about what it's doing.
I. Glenn Cohen, professor at Harvard Law School
Some people have described that the court under [Chief Justice] Roberts has a tendency to do what they call faux judicial minimalism or death by a thousand cuts. That's the idea to often not overrule the central precedent, but cut it back to such an extent that essentially withers on the vine.
This is really what the Roberts court has done with voting rights, for example, and other areas. That they begin slowly, and then they add, they add, they add, and they add, such that they never really overrule something facially. Instead they whittled it down to being not really a very strong right.
Mark Kende, professor at Drake University Law School
A lot of scholars such as myself think that this particular court will eventually want to get rid of Roe and Casey, but that they may try to proceed gradually. Although some might say this isn't that gradual, but they may not try to do it the first time out. They may try to come up with some way to basically uphold this law or at least do something that undermines Casey and Roe, but doesn't quite get rid of those cases.
If the court does uphold [the Mississippi law], there may still be some cautionary language saying, we're not completely getting rid of the idea that a woman must have a fundamental right to abortion.
Sherry Colb, professor at Cornell Law School
The [Mississippi] law is completely inconsistent with Roe. So in that sense, they're overturning Roe, but I don't think they're going to characterize it that way because they don't want to create a backlash.
Getting rid of viability is overruling Roe and Casey. If they suggest, as they will almost certainly do, that it isn't, then they're lying about what they're doing. And I worry that the public will just hear the soundbite and think, oh, they haven't overruled Roe yet.