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The Supreme Court will soon decide an abortion case in which Mississippi has asked the Justices to overturn Roe v. Wade. The oral argument suggested that five Justices lean toward doing so, but a ferocious lobbying campaign is trying to change their minds.
The campaign may be the most apocalyptic in its warnings since the ObamaCare case in 2012. Democrats are demanding that Justice Clarence Thomas resign because of the political activism of his wife. The New Yorker published a long piece portraying Justice Amy Coney Barrett as almost a religious cultist.
The Court’s decisions on its emergency or “shadow” docket are suddenly portrayed as a scandal, though liberals often make the emergency appeals. The press is keeping up a steady campaign on the theme that the “Supreme Court is broken.”
The campaign is especially fervent on the Mississippi case, Dobbs v. Jackson Women’s Health Organization. The predictions are widespread that the days of back-alley abortions will return if Roe is overturned. The Atlantic magazine published a piece on a crude makeshift abortion device from the pre-Roe era that it suggests would make a comeback.
“Abortion Access Is Being Dismantled,” says Planned Parenthood Action Fund. Adds the Guardian: “We are witnessing the final days of reproductive freedom.”
All of this is aimed at swaying the Justices to step back from overturning Roe and Planned Parenthood v. Casey because the political backlash against the Court will be ferocious. The particular targets are Justices Barrett and Brett Kavanaugh, the two newest Justices.
Judging from the Dec. 1 oral argument in Dobbs, the three liberal Justices would bar the Mississippi law that bans abortion after 15 weeks as a violation of Roe and Casey. Justices Thomas, Neil Gorsuch and Samuel Alito are likely votes to sustain the law and overturn both precedents. Justices Kavanaugh and Barrett seemed, in their questioning, to side with the three conservatives.
But Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an “undue burden” on the ability to obtain an abortion. If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.
The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That’s what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now.
We hope he doesn’t succeed—for the good of the Court and the country. The Chief’s middle ground might be explainable with some legal dexterity, but it would prolong the Court’s abortion agony. Critics on the left would still lambaste the Court for letting Mississippi’s law stand. And states would soon pass more laws with even narrower restrictions that would eventually force the Justices to overturn Roe and Casey or say the precedents stand on solid ground.
Far better for the Court to leave the thicket of abortion regulation and return the issue to the states. A political uproar would ensue, but then voters would decide on abortion policy through elections—starting in November.
The ability to obtain an abortion would not disappear across the U.S. It might in some states, but in some of those states there are already relatively few clinics that perform abortions. The likeliest result is a multiplicity of laws depending on how the debate and elections go. California might allow abortion until the moment of birth. Mississippi might ban it except in cases of rape or incest.
The Guttmacher Institute, which favors abortion rights, estimates that 26 states “are certain or likely to ban abortion without Roe.” But that means 24 states would allow it, including some of the most populous. Based on a Guttmacher analysis from 2017 on abortions performed in various states, the majority of those abortions would remain legal.
Meanwhile, a movement is already underway to pay for women in restrictive states to travel and obtain abortions elsewhere. Planned Parenthood would have the biggest fund-raising years in its history. Abortion opponents might even be disappointed by the result of the political debate. They would have to make, and win, the moral case against abortion among their fellow citizens.
This is how the American system is supposed to work, as the late Justice Antonin Scalia often wrote. After a series of elections, abortion law will sort itself out democratically. That had started to happen before the Supreme Court intervened in Roe, embittering the abortion debate and damaging the Court.
In Dobbs the Court can say that such a profound moral question should be decided by the people, not by nine unelected judges.
Opinion from The Wall Street Journal.
