Sotomayor says the sponsors of Mississippi's 15-week abortion ban said "we're doing it because we have new justices."
She asks: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?"
She asks: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?"
Chief Justice Roberts suggests that the bright-line rule established in Roe and Casey—no total abortion bans before fetal viability—was completely arbitrary. It sounds to me like he is ready to abolish the viability line.
After Sotomayor suggests that overturning Roe would imperil other precedents protecting contraception and gay rights, Barrett asks if the court could overrule Roe in a way that preserves those precedents. Sounds like she's preemptively saying: Roe is dead, but those are safe.
Barrett and Kavanaugh's softball questions to the Mississippi solicitor general suggests to me that both of them are prepared to overrule Roe v. Wade—while saying (1) other precedents (same-sex marriage, contraception) are safe, and (2) the court won't mandate abortion bans.
This is a ridiculous question from Kavanaugh. No one thinks Mississippi is arguing that the Supreme Court must mandate abortion bans.
Kavanaugh is moving the Overton Window. He's telling the public: "We won't force states to allow abortion OR ban abortion—we're so moderate!"
Kavanaugh is moving the Overton Window. He's telling the public: "We won't force states to allow abortion OR ban abortion—we're so moderate!"
Kavanaugh is using these arguments to claim that "returning abortion to the states" is the new middle ground. I think this is pretty clearly over. There are obviously five votes to overturn Roe v. Wade.
Roberts is floating a compromise that allows abortion bans at 15 weeks (or perhaps earlier) but preserves the right early in pregnancy. But I don't hear any takers. Barrett and Kavanaugh do not sound remotely interested.
This question from Amy Coney Barrett is basically game over for Roe. She says: Now that all 50 states have "safe haven" laws that let women relinquish parental rights after birth, the burdens of parenthood discussed in Roe and Casey are irrelevant, and the decisions are obsolete.
More from Barrett: "Actually, as I read Roe and Casey, they don't talk very much about adoption. It's a passing reference that means out of the obligations of parenthood." She's adopting Mississippi's argument that the availability of adoption obviates the need for abortion.
Kavanaugh is doing the thing where he summarizes his own position while attributing it to "the other side."
"The court has been forced ... to pick sides in the most contentious social debate in American life ... [but] the Constitution is neutral on the question of abortion."
"The court has been forced ... to pick sides in the most contentious social debate in American life ... [but] the Constitution is neutral on the question of abortion."
Kavanaugh says some of the important cases in history overruled precedent.
"If we think that the prior precedents are seriously wrong ... why then doesn't the history of this court's practice ... tell us that the right answer is actually a return to the position of neutrality?"
"If we think that the prior precedents are seriously wrong ... why then doesn't the history of this court's practice ... tell us that the right answer is actually a return to the position of neutrality?"
Kavanaugh is saying that some of the Supreme Court's most celebrated decisions overruled precedent, and overruling Roe and Casey will deserve celebration because it restores the court's "neutrality" and returns the abortion debate to the states and Congress.
The case is submitted. The Supreme Court will overturn Roe v. Wade in June 2022. Half the states will have complete or near-total bans on abortion within six months.
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