The latest case may have a more complicated outcome than just upholding or overturning Roe V. Wade
Dobbs, a case involving the Supreme Court in Dobbs (v. Jackson Women’s Health) is one of the most important cases regarding abortion in recent decades. This is because the state of Mississippi is challenging Roe V. Wade. Despite both sides focusing on whether federal abortion rights would be preserved or eliminated, oral arguments showed that this may not be the case at all.
Pro-life advocates hope for the complete repeal of Roe. It would not ban abortion in America. As Justice Brett Kavanaugh and Mississippi Solicitor General Scott Stewart discussed, it would put the Supreme Court into a neutral position. It would not be pro- or contra abortion but would allow states to make their own laws. It would likely lead to abortion being outlawed in certain states while remaining the status quo for others.
Following Wednesday’s arguments, Sen. Ted Cruz expressed optimism that this would be the result of the current case.
“If you look at where the court really started to go wrong, the 1973 decision in Roe v. Wade started the Supreme Court down this very dangerous road of being deeply, deeply politicized,” Cruz told Fox News’ Laura Ingraham Wednesday night. “What the justices said in Roe was ‘You silly voters, you don’t have a right to make any decisions regulating abortion. It doesn’t matter what you may vote to do, what your citizens vote to do, we nine unelected judges are going to decree the rules for you.’”
Cruz stated that he is optimistic and hopeful that Roe v. Wade will be overturned by the Supreme Court in the current case.
Democrats are slamming the court for the possibility that it will overturn Roe. Before oral arguments took place, Senator Jeanne Shaheen (D-N.H.) warned that the court should listen to its people as there would be a revolution if Roe is overturned.
Many justices seemed reluctant to reverse Roe’s historic decision. They also noted the political implications and the response of the public. Sonia Sotomayor and Stephen Breyer, Liberal Justices, warned of the potential damage to the court from a high profile change in course. Conservative Justice Amy Coney Barrett spoke similarly about the “public reaction” to major cases being overturned. This is what justices on both sides of the ideological spectrum could think about when rejecting the Mississippi law.
However, the questioning by a number justices opened the door to a third possibility. The question of how it would work if the court removed the viability line, the current standard which prohibits abortion bans prior to fetal viability (which is roughly 24 weeks into a pregnancy) was raised more than once. Mississippi’s law bans most abortions after 15 week.
Justice Samuel Alito raised the argument that viability lines are “arbitrary” and stated that both sides have interests before and after this point in time. Clarence Thomas and Neil Gorsuch asked attorneys how it might work if there was no viability line. Justice Elena Kagan asked Stewart how he would apply undue burden standards throughout pregnancy.
Chief Justice John Roberts expressed an openness to the removal of the viability line by claiming that a 15 week ban was “not dramatic departure” from viability.
Interviews revealed that the court was interested in finding a way to not completely overturn Roe v. Wade. This could be done by permitting greater restrictions on abortion, while still recognizing it as a human right. It is possible that the court will uphold the Mississippi law and reject any other stricter laws, such as Texas’s heartbeat bill which bans abortion after six months.
Interviews revealed that the court was interested in finding a way to not completely overturn Roe v. Wade. This could be done by permitting greater restrictions on abortion, while still recognizing it as a human right. It is possible that the court will uphold the Mississippi law and reject any other stricter laws, such as Texas’s heartbeat bill which bans abortion after six months.
He wrote that Roe may not need to be completely ignored in order to hold that Dobbs does not prohibit all pre-viability restrictions. “That being said, the court must decide whether an abortion ban after 15 weeks is permissible.”
Ilya Shapiro, Cato Institute, however, questioned whether the more conservative justices would be so enamored by such a move. Shapiro, speaking to Fox & Friends Thursday morning, also downplayed Roberts current position on court, arguing that he no longer represents the ideological center of the court.
He said, “I don’t know if Justice Barrett will agree to that kind of intermediate decision. She, after all., is the fifth voter, not Chief Justice Roberts.”