Oral arguments today made clear that this court will overturn Roe—and that they’ll insist on their own reasonableness the whole time.
Perhaps it would be refreshing if the conservatives on the U.S. Supreme Court no longer felt the need to lie to us. The lying, after all, is becoming nearly untenable—especially for an institution that relies on public confidence. After confirmation hearings in which they promised that stare decisis was a deeply felt value and that Roe v. Wade was a clear “precedent of the court” and “the law of the land.” there’s something sort of soothing about knowing the lying to our faces will soon be over. They were all six of them installed on the Supreme Court to put an end to Roe v. Wade after all, and that is exactly what they intend to do. There will be no more fake solicitude for women making difficult choices, no more pretense that pregnant people really just need better medical advice, and no more phony concerns about “abortion mills” that threaten maternal health. There is truly something to be said for putting an end to decades of false consciousness around the real endgame here, which was to take away a woman’s right to terminate a pregnancy—rape, incest, abuse, maternal health no longer being material factors. At least now we might soon be able to call it what it is.
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But somehow, even still, only some of the six conservatives seem brave enough to admit to the real project. That became clear as oral arguments progressed this morning in Dobbs v. Jackson Women’s Health. Evaluating the constitutionality of a Mississippi law that prohibits virtually all abortions after 15 weeks of pregnancy, a pre-viability ban on its own terms that quite deliberately violates Roe v. Wade and Planned Parenthood v. Casey, some of the justices continued to pretend that what was being proposed—the overturning or hollowing out of a precedent on which generations of pregnant people had relied—was a teensy little tweak, a long-overdue tug of the constitutional sheets in the right direction.
Chief Justice John Roberts, sounding eminently Newsmax-y, referenced the private papers of Justice Harry Blackmun several times to argue that the author of Roe secretly believed the viability line established in that case is arbitrary. He then compared America’s abortion permissiveness to that of China and North Korea. (Reminder that the court’s conservatives do not like it when you compare U.S. capital punishment with foreign countries.) Justice Brett Kavanaugh, trying desperately to justify overturning Roe and Casey while sounding like the reasonable centrist he wants to be in the world, fatuously suggested, several times, that if only there were some way to balance a woman’s rights and interests against that of a fetus. The problem with Kavanaugh’s rhetorical question is that there is: It’s called Roe v. Wade, and if that wasn’t enough for him, he’d love to hear about Planned Parenthood v. Casey, which preserved the right to choose even while narrowing it. Indeed, the text of these opinions have struck that balance for 50 years. But rather than look to actual precedent, Kavanaugh instead posited that the middle place between a Constitution that outlaws all abortion and one that permits it is surely a Constitution that “leaves it to the states.” No matter that the outlawing of all abortion isn’t even on the table in this case. Say it enough times and it becomes a goalpost.
Meanwhile, Justice Samuel Alito, insisting that religion has no role in the personhood fetish of his colleagues, pretended that the question of when life begins is purely secular, because some secular philosophers have weighed in on it. Roberts batted away all of the statistics about how unwanted pregnancies harm women economically with a simple “putting that data aside,” before he asked why 15 weeks isn’t enough time (the existing standard is 24 weeks) to terminate a pregnancy. Similarly, the court was happy to put aside the data around the health risks of forced pregnancy (it’s 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion, and this falls hardest on poor women of color) or the legitimate reasons some women can’t access an abortion before 15 weeks of pregnancy. Justice Clarence Thomas really seemed to want to know whether we could punish more women for fetal endangerment.
Amy Coney Barrett—the only person on the current court who has actually carried a baby—spent most of her time explaining that since the time of Roe, state “safe haven” laws have expanded to make it slightly easier to give up an unwanted baby for adoption. This, according to Barrett, somehow means it’s now fine to make women carry fetuses to term against their will. If the problem is unwanted parenting, she asked, “why don’t the safe haven laws take care of that problem?” This is an extraordinarily wrongheaded argument that evinces no understanding of what both carrying your rapist’s baby to term, and indeed carrying any unwanted pregnancy to term, actually means. The old “drop that 12-year-old’s baby at the fire station” era of callousness is what Roe and Casey were designed to protect against.
If you want to pretend the Constitution has nothing to say about bodily autonomy even when it does, by all means. If you want to insist that equal protection is irrelevant to a discussion of forced maternity, do it. But if you really want to regulate women’s bodies, while claiming this is a teensy little issue, do, please, respect us all enough to call it what it is.
They won’t. Instead, they will fashion themselves heroes and champions as they make this decision—and the way they will do this was made apparent when both Kavanaugh and Alito decided to compare Roe v. Wade to Plessy v. Ferguson. Plessy is the case that mandated separate but equal and was overturned by Brown v. Board of Education—to be clear, in this analogy, Roe is Plessy and Dobbs is Brown. Overturning Plessy was justified because it was wrong, Kavanaugh argued, a sentiment that is surprising from him and others because given the opportunity to compare Roe to Plessy at their confirmation hearings, none of these justices obliged. At their hearings, Roe was settled law, the precedent of the court. But now Roe is Plessy, which is why when the justices whisper softly that Lawrence v. Texas, Obergefell, and Griswold are not under threat today, you might wonder why you should trust them. They are all settled law—until they are not. They told us as much at their confirmation hearings and assured us today they were lying then, but aren’t lying now.
The real victim in all of this, for Kavanaugh at least, is the court. The poor Supreme Court, which has been obligated “to pick sides on the most contentious social debate in American life.” Why can’t everyone leave the court out of messy constitutional things? The only way to be “scrupulously neutral” would be to leave the question of abortion bans to the people. Of course, Kavanaugh has no real interest in leaving anything to “the people”—polling is quite clear on what the “people” would prefer. When Kavanaugh talks about getting out of this whole thorny personal autonomy and equality game, he means leave it to gerrymandered red-state legislatures, who are better positioned than pregnant people to know that they really just want to be forced to carry to term.
Despite all of the precious actions of Roberts and Barrett and, yes, Kavanaugh, this was never a 3–3–3 court. It was a 6–3 court of which half of that six are sometimes slightly cautious about the rates at which they are willing to push their own ideological agendas under the threat of public illegitimacy. It seems that the issue on which they are prepared to do so is, as it has always been, women’s health and safety and equality and dignity.
But even as they do it, they will hold on to this idea that they have been moderate until the end. After all, pro-choice senators confirmed them. Academics at Ivy League law schools promised they believed in precedent. And when they rule for Mississippi’s 15-week ban and overturn (or hollow out) Roe, they’ll have cover to justify it. They’ll probably point to Texas’ S.B. 8, a six-week ban that has already been in effect for three months, which these same justices allowed to take effect when they didn’t have to sign their names to an order. But they’ll strike down that one, declaring that Texas cannot undermine judicial supremacy, and a six-week ban tied to vigilante justice is too, too much. And when they do, it will be yet another way for them to pretend to be scrupulously neutral on abortion and deeply worried about workable tests while they are really sailing through their own personal 24-hour drive-thru Overton window.
When that happens, you will hear more about the much-vaunted 3–3–3 court and its incremental moderates. That too will be gaslighting. Your call whether you want to fall for it.