The Supreme Court indicates it is ready to end the Roe v Wade case | Moira Donigan

IIt went worse than expected, and expectations were already low. As the Supreme Court prepared to hear oral arguments in Dobbs v. Jackson, a lawsuit over the 15-week abortion ban in Mississippi that poses the most serious challenge to Roe v. Wade in a generation, many court watchers predicted a massive rollback of abortion rights. But the prevailing line among reasonable critics was that the Court, fearing censure from the largely pro-choice American public, would try to have its cake and eat it too — allowing states to ban abortion early in pregnancy, while retaining abortion as a constitutional right. Connected.

The most convincing version of this argument came from Slate Mark Joseph Stern, who predicted that the court, as it did in 1992 with Planned Parenthood v. Casey, might weaken the right to abortion without giving it up entirely. In Casey, the Supreme Court has softened the scrutiny standard applied to government abortion restrictions — from a standard of “strict vetting” to a looser “undue burden” standard — and asserted that states can ban abortions entirely after fetal viability. A pregnancy in which a fetus can survive outside the womb, usually at about 24 weeks.

Stern, like many others, predicted that a court might impose a more sensitive statutory test for abortion restrictions – a “rationale review” – and overturn the validity criterion. The result would be that states could more easily ban and restrict abortions, even before they are viable, but still not be allowed to completely ban abortions. “The court could roll back the point at which states can ban abortion entirely from 24 weeks to 15 or perhaps 12 weeks, the end of the first trimester,” Stern wrote. “The diminished right to abortion will remain, battered but it is there.”

However, the end of the feasibility criterion would still be practically disastrous for access to abortion in practice, as well as to women’s freedom and dignity. This has been elegantly explained before New York Iron Carmon, who wrote that attacks from conservatives over the past 30 years have increased the legal reliance of the abortion right on the feasibility criterion, even as advances in prenatal and neonatal care have pushed viability early in pregnancy. “If a ban on abortion at week 15 is allowed for any reason, why not draw the line at six?” Carmon asked.

Ditching the feasibility standard, while leaving the right to abortion technically intact, would in practice invite a chaotic rush, with conservative nations rushing to ban abortion as soon as possible and pushing the limit back sooner and faster during pregnancy. Julie Rickleman, a longtime abortion rights advocate and attorney representing the single Mississippi abortion clinic in the Dobbs case, but it’s blunt: If the go-ahead goes, Roe isn’t really good law anymore. “If the court upheld this law, it would disregard the feasibility line and overturn the Roe system,” she told Carmon. “This is the main line in the law that protected people’s access to abortion.”

In other words, the best-case scenario was legal chaos, misogynistic legislation, a diminished right to women’s physical independence, and millions of people subjected to forced pregnancy.

But even these predictions – considered “optimistic” among legal observers now that the Supreme Court is in the grip of a conservative supermajority – have proven very rosy. In oral arguments in Dobbs on Wednesday, five of the court’s six governors showed little interest in keeping Roe during the viability divestiture. Instead, they focused on eliminating Rowe, and the right to abortion altogether. By the end, it seemed likely that conservatives had five critical votes to decide that the Constitution did not protect the right to terminate a pregnancy: Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Connie Barrett.

The only exception among conservatives was Chief Justice John Roberts, who seemed almost desperate to draw attention to the feasibility line. Over the course of the arguments, Roberts repeatedly returned to the question of feasibility, asserting that it was rejected as a possible standard in Roe’s initial 1973 decision and later adopted in Casey. But none of the other conservatives took the bait.

The two “swinging” votes – if such a very conservative and committed court could be said to have such a thing – are Amy Connie Barrett and Brett Kavanaugh. In a display of the impotence that has marked his career as chief justice, Roberts has been unable to persuade either of them to adopt his seemingly preferred proposal of preserving Roe’s crust while downplaying the standard of validity.

Instead, Kavanaugh spent much of his speaking time reassuring his colleagues that they did not need to abide by Roe’s precedent, introducing a long list of cases in which the Supreme Court had reversed its earlier decisions. Meanwhile, Barrett emphasized the availability of adoption as a supposedly convenient alternative to abortion, emphasizing at one point that so-called “safe harbor” laws, which allow mothers to waive their parental rights and leave their children in the care of others without immediately after birth, offer adequate treatment to pregnant women who They cannot or do not want to be parents. The idea was that if a woman was pregnant and did not want to be, the acceptable outcome for her was to become pregnant and give birth to a child, and then simply give it up.

Meanwhile, more hawkish conservatives have made more somber and ominous assessments of abortion as a legal issue, and their sadistic and extreme views give some indication of the direction the court may take in future cases. Both Alito and Thomas repeatedly referred to abortion as “the killing of a life,” and indicated that they would be open to learning about the character of the fetus. So far, the ban on post-viable abortion has been based on the legal idea that the state has an interest in protecting the life of the fetus that goes beyond the woman’s interest in controlling her own body after that point. But Alito and Thomas suggested that they believed that the interest belongs not only to the state, but to the fetus itself, and that this interest begins too early. Alito once said, “The fetus has an interest in having a life.” “This does not change from the point before and after feasibility.”

Suggesting that the fetus may have interests in itself—interests that can be considered equal or greater than the interests of the woman carrying it—is a dramatic step in anti-choice jurisprudence, one that has dramatic repercussions on women’s health, freedoms, and access to public life. After Wednesday’s oral arguments, it seems certain that the Roe v Wade case will soon be upended. For this court, this is only the beginning.

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