John Roberts has a plan that would destroy – but save – Roe v. Wade. Can it work?

The leader’s bet, however, would require at least one of the other five conservatives to join him. Otherwise, this newly revamped Supreme Court looks set to overturn Roe’s benchmark entirely. Either way, the Court is on the verge of depriving itself of nearly half a century of constitutional protection.

The five Conservatives to Roberts’ right, including three appointed by former President Donald Trump, have over the years signaled their opposition to abortion rights. Trump has vowed to appoint judges who would overthrow Roe, and Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have all criticized decisions giving women the choice to terminate a pregnancy.

Despite his past fighting against the right to abortion, Roberts, with an institutional spirit, showed little interest on Wednesday in going any further than the specific question that the judges had agreed to take up: can states ban abortions before fetal viability without breaking the Constitution?

All in all, the solid Q&A demonstrated the new era of reproductive rights for American women. Since 1992, the court has not heard such a direct threat against Roe, and today’s bench lacks the moderate Republican-appointed judges who led the 1992 compromise decision that approved the core of the position. essential from Roe that gave women the right to terminate a pregnancy before fetal viability. .

Due to Covid-19 restrictions, the painting in the courtroom was sober, as well as solemn, belying outcry from hundreds of protesters outside. The few dozen spectators inside (mostly reporters and clerics) wore high-quality, fitted masks and were well spaced on the red upholstered benches of a courtroom that can typically seat 300 people.

The judges – all but Sonia Sotomayor were exposed – bore the weight of the moment on their faces, and their questions related to important issues of a woman’s autonomy, fetal life and the institutional integrity of the court – based on respect for precedents.

The Roe v. Wade of 1973 and Planned Parenthood v. Casey’s 1992 used viability as a cutoff point for when a state’s interest in protecting the life of a fetus might exceed a woman’s ability to terminate a pregnancy.

RELATED: Roe Lasted Almost 50 Years. How unusual would it be to knock him down?

Roberts has repeatedly suggested that the viability line is arbitrary and irrelevant to Roe and Casey’s core holdings – a point contradicted by lawyers challenging Mississippi law. At the same time, Roberts has revealed an openness to retaining a certain right for women to terminate pregnancies at an early stage.

Three judges to his left, Stephen Breyer, Sotomayor and Elena Kagan, want to preserve the full extent of Roe v. Wade and Planned Parenthood v. Casey. They noted that for more than half a century, women have relied on these decisions, that they are woven into the fabric of America’s legal and social fabric, and that to overthrow any part would jeopardize the usual membership of the Upper Court to precedents.

But the votes of these three Liberals – in the minority – are unlikely to determine the resolution of this landmark controversy.

Will justice follow?

Those named by Trump, Gorsuch and Kavanaugh, seemed inclined to eliminate Roe v. Wade. Barrett, perhaps less, by his questions.

Gorsuch responded to Roberts’ strategy with skepticism, wondering if, if the viability limit was dissolved, the judges could ever develop a new “viable standard”.

RELATED: Brett Kavanaugh, Who Hailed the Importance of Precedent in Confirmation Fight, Minimizes It As He Plans To Reverse Roe

Of the other two court conservatives, Clarence Thomas vigorously challenged Roe’s validity but Samuel Alito was not so clear. Alito appears to be a final vote to maintain the 15-week Mississippi ban, but possibly to postpone a final judgment on Roe.

It seemed that if an abortion right emerged from this case, it would be thanks to Roberts’ votes with the three liberals (who would nonetheless disagree with keeping Mississippi law), and a fifth vote by Alito or one of the three appointed by Trump. .

As a lawyer in the Ronald Reagan and George HW Bush administrations, Roberts opposed Roe and even urged the Supreme Court to overturn it. But since taking the bench, he’s taken a more cautious stance.

He voted to keep abortion regulations, but, in a dispute in Louisiana in 2020, voted to overturn a restriction on doctors who perform abortions, based on the 2016 precedent with which he didn’t disagreed.

As a leader and judge close to the ideological center of the judiciary, he tried to prevent it from tilting too far to the right.

He expressed his concerns about public attitudes towards the court and the potential for political taint.

Sotomayor approached the possibility harshly on Wednesday. She referred to remarks by Mississippi sponsors of the abortion ban which suggested they believed the court, with its new judges and cemented conservatism, would welcome the ban.

“Will this institution survive the stench that this creates in the public’s perception that the Constitution and its reading are only political acts?” She asked, adding, “I don’t see how that is possible.”

READ: Transcript of Supreme Court oral argument in Dobbs v. Jackson Women’s Health

Liberal colleagues Breyer and Kagan emphasized the court’s usual respect for precedent, especially when, as in this situation, the court seriously re-examined Roe’s validity and upheld it in 1992.

“Usually there has to be some rationale, some solid rationale, in a case like this beyond you believing the case to be bogus,” Kagan said. “And I guess what strikes me when I look at this case is that, you know, not much has changed since Roe and Casey, that people think it’s right or wrong depending on the things that they always thought it was right or wrong. ”

On the other side of the ideological divide, Kavanaugh has expressed interest in turning the matter over to state lawmakers, which would mean the end of any constitutional abortion rights.

He prefaced a question with the notion that “the Constitution is neither pro-life nor pro-choice on the issue of abortion, but leaves the problem to the people of the States or perhaps Congress to be resolved in the process. democratic”.

Is a shorter legal viability standard practical?

When the court first established an abortion right in 1973, it anchored it in the due process clause of the 14th Amendment, which protects the right to privacy.

Roe judges acknowledged that the Constitution contains no explicit reference to a right to privacy, but said that in a series of decisions dating from the late 1800s, “the Court recognized that a right to privacy, or a guarantee of certain areas or areas of confidentiality, exists under the Constitution.

The Roe Court said the right extends to activities related to marriage, contraception and child rearing, and “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Oral arguments at the Supreme Court on Wednesday December 1.

As Roberts moved to a position that would undermine but not eliminate that right, he asked Julie Rikelman, representing the Jackson Women’s Health Organization, if his idea was feasible.

“If you think this is a matter of choice, that women should have the choice to terminate their pregnancy, that assumes that there was a point when they were given the right choice … and why would 15 weeks be inappropriate online? ” asked the chief justice.

Roberts added that he did not see how the threshold of viability had “anything to do with choice.”

Rikelman countered that, from a practical standpoint, some women, those in “the most difficult circumstances” later in their pregnancy, would be unable to obtain the necessary medical attention. She said any alternative standard would be “less principled and less achievable than sustainability.”

She also warned that states will likely go down to fewer weeks, as happened in Texas, which bans abortion after about six weeks. The Supreme Court has allowed this ban to be maintained while it assesses the merits of the procedures provided for by law.

READ: Transcript of Supreme Court oral argument in Dobbs v.  Jackson Women's Health

In 1973, the court attempted to balance the interests of a woman with those of the fetus and chose viability as the limit, he said at the time, “because the fetus then presumably has the capacity to living a meaningful life outside of the mother’s womb.State regulation protecting the fetus for life after viability therefore has both logical and biological justifications.

Barrett asked what the burden would be that women who cannot obtain abortions would face, in light of the possibility of giving up a child for adoption or waiving parental rights under state law.

Why don’t such options “take care of this problem?” Barrett asked. “It seems to me that it concentrates the burden much more narrowly. There is, without a doubt, an attack on bodily autonomy, which we have in other contexts, such as vaccines. However, it doesn’t seem to me that following this pregnancy and then parenting is part of the same burden. ”

Rikelman stressed that the right to abortion encompasses “bodily integrity” as well as “decision-making autonomy and in particular decisions relating to procreation, marriage and procreation”.

Pregnancy, said Rikelman, “places unique physical demands and risks on women and in fact impacts their entire lives, their ability to care for other children, other family members. , on their ability to work “.

Alito tried to punch holes in the rationale for the threshold of viability. In past cases, he has sought to limit reproductive rights and may be inclined towards a complete overthrow of Roe.

But in Wednesday’s session he appeared to be fighting, like Roberts, for an option that was not as defined as those sought by the far right or the left, for or against Roe.

At one point, Alito asked if “the only real options we have are to reaffirm Roe and Casey as they are or to cancel them in their entirety?” If he or any other judge joined Roberts in an attempt to find common ground, the result would still end abortion rights as they exist today.

The question would then be: what remains for the future?

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