Good morning. The Supreme Court seems likely to undermine or overturn Roe v. Wade.
Outside the Supreme Court yesterday.Gabriela Bhaskar/The New York Times
A new era
All six Republican appointees on the Supreme Court have long signaled that they have qualms with the Roe v. Wade decision. What's been less clear is whether at least five of them — enough to make a majority — would be willing to overturn Roe, which would require scrapping decades of legal precedents.
Doing so has downsides for the court. It would then look more like just another partisan branch of government that changes policy when its members change, rather than a nonpartisan interpreter of legal principles. At least a few justices are already worried about the court's image. "This court is not comprised of a bunch of partisan hacks," Justice Amy Coney Barrett said in a recent speech.
During yesterday's arguments over a Mississippi abortion law, the three Democratic appointees on the court tried to appeal to their conservative colleagues' concerns about the court's standing. If the justices overturn Roe v. Wade, Justice Stephen Breyer said, many Americans would say, "'You're just politicians.'" Breyer added, "That's what kills us as an American institution."
This strategy has worked in the past. It has sometimes swayed Chief Justice John Roberts during his 16 years on the court and also seemed to influence Barrett and Justice Brett Kavanaugh last year. On L.G.B.T.Q. rights and Obamacare, the justices issued rulings that were more modest and consistent with precedent than a strictly partisan court would have issued.
On abortion, however, many court watchers think that the strategy is likely to fail this time.
After Ginsburg …
The questions that the justices ask during arguments are often a preview of how they will rule, Adam Liptak, who covers the court for The Times, points out. Yesterday, all six conservative justices asked questions suggesting support for Mississippi's law. It outlaws abortion after 15 weeks, a clear violation of Roe and subsequent court rulings protecting abortion access early in pregnancy.
Roberts's questions indicated that he might still prefer a relatively narrow ruling that does not fully undo Roe. But he is no longer the swing vote. After Ruth Bader Ginsburg's death, the court has a majority of five Republican-appointed justices even if Roberts votes with the Democratic appointees.
In yesterday's arguments, all five of those justices — Barrett, Kavanaugh, Neil Gorsuch, Samuel Alito and Clarence Thomas — seemed interested in a full repeal of Roe. Alito suggested that the ruling was "egregiously wrong."
Still, the outcome remains uncertain. Justices often try to influence one another during behind-the-scenes negotiations over a case. Roberts or the three liberal justices may yet convince Barrett and Kavanaugh that the political costs of full repeal are too large. The court is likely to announce its decision by early July.
Either way, the long political battle over abortion seems to be on the verge of a new era. In much of the country, abortions may soon be less common than they have been for nearly a half-century.
The justices' words
"Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" Sonia Sotomayor asked. "I don't see how it is possible."
Elena Kagan made the case for upholding Roe: "This is part of our law. … This is part of the fabric of women's existence in this country."
Breyer quoted from a 1992 Supreme Court decision that reaffirmed Roe: "To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court's legitimacy beyond any serious question."
Roberts, in suggesting the justices uphold the Mississippi law without fully overturning Roe, noted that the U.S. now permits more abortion access than many other countries. "I'd like to focus on the 15-week ban," he said, adding that it was similar to "the standard that the vast majority of other countries have."
Kavanaugh suggested that overturning Roe was the neutral solution: "Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?"
"If I were to ask you what constitutional right protects the right to abortion, is it privacy?" Thomas asked. "Is it autonomy? What would it be?"
Alito expressed doubt that the Constitution protected abortion: "Can it said that the right to abortion is deeply rooted in the history and traditions of the American people?"
Barrett noted that previous rulings requiring abortion access "emphasize the burdens of parenting." But because women can put babies up for adoption, those burdens are not an issue, she suggested.
Gorsuch implied that the court's previous focus on viability — the point after which a fetus can survive outside the womb — was inappropriate. (Many abortion opponents emphasize that younger fetuses are living beings.) "If this court will reject the viability line, do you see any other intelligible principle that the court could choose?" Gorsuch asked.
"I'm skeptical about dark prophecies of a legitimacy crisis for the Supreme Court should it overturn Roe — or the coming electoral blood bath for the G.O.P.," The Washington Post's Megan McArdle writes. "Most people don't care about abortion as much as pro-choice Twitter. Many of those who do are on the other side." (A previous edition of this newsletter analyzed public opinion.)
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