Students For Life Of America Rally At Supreme Court
Students for Life of America hold a rally at Supreme Court with multiple members of Congress the night before the court is hearing Dobbs v. Jackson Women's Health Organization, November 30th, 2021 (Photo by Zach D Roberts/NurPhoto via AP) Credit: Associated Press

Justice Samuel Alito has to be the most annoying interrogator since Lawrence Olivier, in the 1976 film Marathon Man, stuck a dentist’s drill into Dustin Hoffman’s mouth and screamed, “IS IT SAFE?”

Alito’s questions usually amount to nothing more than, “Why can’t I overrule any precedent I don’t like?” And in Monday’s high-stakes argument in Dobbs v. Jackson Women’s Health Organization, Alito found many ways to ask that question. The force of precedent—what lawyers call stare decisis—impels the conclusion that Mississippi’s law banning abortions after 15 weeks violates 1973’s Roe v. Wade and 1992’s Planned Parenthood of S.E. Pennsylvania v. Casey. Those cases set a bright line at fetal viability—the point, at roughly 24 weeks, when a fetus can survive if delivered outside the mother’s womb—and said that the state could not bar a woman from choosing abortion before that point.

“Suppose we were considering that question for the first time,” Alito asked Julie Rikelman, the reproductive rights lawyer representing the last abortion clinic in Mississippi. “What would you say to the argument that has been made many times by people who are pro-choice and pro-life that the [viability] line really doesn’t make any sense, that it is, as Justice Blackmun himself described it, arbitrary?”

A few minutes later, Justice Amy Coney Barrett asked the same question in slightly different words. “Take it out of the issue of stare decisis,” she helpfully suggested. Instead, she asked, what if a state court decided that a state constitution protected the right to choose up to, say, 27 rather than 24 weeks? “As a matter of first principles, is that line acceptable as a matter of constitutional law?”

In other words, both justices were asking: Do we really have to mess around with these obsolete precedents or can we just do what we want? Won’t you pretty please concede that your precious precedents are nonsense?

Not a soul listening to the argument—whether in the eerily deserted Supreme Court chamber or over the Court’s audio feed—has any doubt about how this Court would decide the issue if they were writing on a clean slate. At least three of the justices on the Court’s right wing—and quite possibly all six—think Roe is an abomination and should be overturned today.

Necessarily, then, the Dobbs argument mingles two questions. One involves concrete consequences for millions of women and girls whose lives will be impacted if they lose the right to choose abortion. As far as the Court’s right wing is concerned, that doesn’t seem like a big deal. But also at issue is whether the end of the constitutional right to abortion would be bad for the justices themselves. “We have to have public support,” Justice Stephen Breyer said, “and that comes primarily … from people believing that we do our job. We use reason. We don’t look to just what’s popular.” If the Court overturns a high-profile precedent like Roe, he suggested, the public will accuse the Court of acting as politicians.

It is a horrifying comment on the American judicial system that pregnant women and their interests should be the secondary consideration in a case about their right to control their own bodies. At the same time, it’s understandable that the reproductive rights movement (and the Biden administration) should want to make that issue prominent. In the unlikely event that the right of choice survives Dobbs, it will be because some of Roe’s most resolute foes cross the aisle to uphold it in the interest of the Court itself.

That’s precisely what happened in 1992. In Casey, a Republican-dominated Court made a stunning turnaround to reaffirm Roe’s “essential holding.” The key opinion—by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter—wrote that “the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding.” They concluded not that Roe was right but that “to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.”

Rikelman invoked that reasoning at the outset of her argument on behalf of the abortion providers. “The question, then, is not whether Roe should be overturned,” she told the Court, “but whether Casey was egregiously wrong.”

Casey isn’t just a case about abortion, she argued. It is a key case about stare decisis. Whatever one thinks of Roe, surely the Court is not ready to chuck the stare decisis precedent as well?

The state of Mississippi, represented by its solicitor general, Scott Stewart, argued that the Court’s answer should be, “You bet we are.” When Justice Elena Kagan pointed out that overturning the cases would jettison a combined 50 years of precedent, Stewart responded, “That’s not a point in Roe and Casey’s favor. They have no basis in the Constitution. They adopt a right that purposefully leads to the termination of now millions of human lives … At some point, it’s appropriate for the Court to say, ‘Enough.’”

So the justices wondered, what would saying “enough” cost … the Court? Chief Justice John Roberts asked what the term “wrongly decided” even means when applied to old cases. “Is it wrongly decided based on legal principles and doctrine when it was decided … or in retrospect?” Lots of decisions by the Warren and Burger Courts use similar reasoning to Roe, he said—i.e., a liberal analysis. Should the Court overturn all of them?

Kagan pointed out that Mississippi had also proposed an “intermediate” rule, allowing laws that ban pre-viability abortions if they do not impose a substantial obstacle to “‘a significant number of women’ seeking abortions.” How would that work? she asked. Stewart smoothly replied that she was right—that an “intermediate rule” wouldn’t work, and thus that completely overruling Roe and Casey would be better.

Barrett suggested that the opinion in Casey expressed “a different conception of stare decisis [from previous cases] insofar as it very explicitly took into account public reaction. Is that a factor that you accept, or are you arguing that we should minimize that factor?” In fact, Stewart said, that factor counsels telling the public to go sit on a pin. “I think the Court could very, very powerfully say, ‘Look, our legitimacy really derives from our willingness to stand strong and stand firm and … overrule when it’s appropriate.’”

Justice Brett Kavanaugh pointed out that the Court has overruled a lot of cases. The government’s lawyer, Elizabeth Prelogar, responded that many of those overrulings involved broadening individual rights. “Here,” she said, “the Court would be doing the opposite.”

It would be telling the women of America that it was wrong, that, actually, the ability to control their bodies and perhaps the most important decision they can make about whether to bring a child into this world is not part of their protected liberty, and I think that that would come at tremendous cost to the reliance that women have placed on this right and on societal reliance and what this right has meant for further ensuring equality.

The question of the cost to women is, of course, the secret case being argued in the shadows of the first. Most of the thousands listening care much more deeply about the effect on women’s lives than about whether nine government employees keep their prestige and legitimacy.

The central argument for Mississippi is that abortion is a mere bagatelle—a procedure that, if once necessary, was now not terribly important. Roberts noted that all the Mississippi law does is make a tiny little change in the point in pregnancy at which abortion is forbidden. So the Court could rule the line is now 15 weeks instead of 24? What’s the big deal there? “If you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice, opportunity to choice, and why would 15 weeks be an inappropriate line?” In other words, Roberts would like to find that elusive “intermediate” rule that would leave the 15-week ban in place but avoid those annoying headlines reading “COURT OVERTURNS ROE.”

Barrett then made an unusual suggestion: Why don’t women just have babies and then give them away? At the time of Roe, she said, a woman who bore a child would usually be forced to raise it, changing her economic and life choices. But now, many states have passed “safe haven” laws allowing women to bring unwanted babies to designated locations shortly after birth, where the state will take charge of them, leaving the woman free to walk anonymously away. “Roe and Casey focus on the difficulties of parenting,” she said. “Don’t the ‘safe haven laws’ deal with that problem?”

Rikelman and Prelogar tried to focus the Court’s mind on the reality that pregnant women must confront. “It’s 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion,” Rikelman noted. “And those those risks are disproportionately threatening the lives of women of color.” (Barrett immediately switched the argument back to the topic of adoption.) Prelogar noted that contraception has an annual failure rate of about 10 percent:

Women using contraceptives, approximately one in 10 will experience an unplanned pregnancy in the first year of use alone. About half the women who have unplanned pregnancies were on contraceptives in the month that that occurred. And so I think the idea that contraceptives could make the need for abortion dissipate is just contrary to the factual reality.

A decision in Mississippi’s favor, if it comes, will require a complex counterfactual: What if we pretend Roe and Casey had never been decided? What if we pretend that 15 weeks is no different from 24 weeks? What if we pretend contraceptives never fail? What if we pretend that the medical, social, and psychological risks of pregnancy don’t exist and so adoption will solve the whole problem?

A decision for the abortion providers will undoubtedly involve some pretense that this is a case about the justices and not—as it surely is—the rest of us.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.