Opinion | How SCOTUS Will Rule on Dobbs, in 3 Scenarios

In the run up to the 2016 election, Hillary Clinton predicted that if Donald Trump won the presidency, Roe v Wade would be overturned. Five years later, Clinton may be proved correct.

This Wednesday, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health, which will decide whether Mississippi’s ban on abortions after 15 weeks violates the Constitution. Sometimes it’s hard to glean where justices stand based on their questions to advocates for both sides. That was not the case in Dobbs.

Based on their questions, a majority of the justices seemed poised to uphold the Mississippi law. But that still leaves room for three very different outcomes, spelling out three different futures for abortion in America.

1. The Supreme Court overturns Roe and Casey

Decided in 1973, Roe v. Wade was the first case to recognize a constitutional right to an abortion. But it was 20 years later, in Casey v. Planned Parenthood, that the Supreme Court created our modern test for abortion restrictions called the “undue burden” standard, which held that the court would invalidate state laws that had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

In practice, this means that a restriction on abortion — like qualifications for doctors who perform them or waiting periods — before about 24 weeks (the current viability line) cannot be a serious burden on a women’s ability to seek an abortion. Given that 15 weeks is before a fetus is viable, Casey’s holding would simply invalidate the Mississippi law since an all out prohibition on abortions between 15 and 24 weeks would obviously burden a woman’s ability to terminate the pregnancy.

But there are those who think that Roe and Casey are bad law and should be overturned. Unlike the First Amendment’s right to free speech, there is no constitutional text mentioning abortion. Instead, the Casey court located such a right in the 14th Amendment’s guarantee that the government could not deprive any person of “liberty … without due process of law.” (Which, it’s worth mentioning, has also underpinned the constitutional right to contraception and marriage.)

Justice Brett Kavanaugh made it clear during the oral argument that he thinks this legal reasoning is unpersuasive. He seemed to concur with the Mississippi solicitor general's argument that the Constitution is silent on the question of abortion and in those cases where the Constitution is silent, it should be up to the people through legislatures to decide, not up to the court. (Last term, Kavanaugh voted with the majority 97 percent of the time, the highest of any justice, meaning he is an important swing vote and it would be hard, if not impossible, to get to five votes to strike down the Mississippi law without him.)

So, it’s possible the court could uphold the 15-week ban by overturning Casey (and by extension, Roe). This isn’t unheard of. The Court has overturned precedent — even long-standing precedent — to reach some of its most monumental and celebrated decisions. Brown overturned Plessy, ending separate but equal. Lawrence overturned Bowers, ending the criminalization of same-sex relations. Miranda, Obergefell, Gideon all overturned Supreme Court precedent.

The liberals on the court — Stephen Breyer, Sonia Sotomayor and Elena Kagan — were deeply concerned with when the court should follow the doctrine of stare decisis, which literally means “to stand by things decided.” As Breyer put it, “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.”

Justices Samuel Alito, Kavanaugh and Amy Coney Barrett all pressed advocates on the court’s history of overturning precedent in cases like Plessy v. Ferguson. Alito even noted that “the south built up a whole society based on the idea of white supremacy” relying on the court’s decision in Plessy. “It was improper reliance,” he added, “it was reliance on an egregiously wrong understanding of what equal protection means.” (A version of Godwin’s law states that an argument ends after any side makes a comparison to Hitler. In legal conversations, Plessy — a decision in which eight of nine justices put the full force of the Constitution behind race discrimination for 50 years — is Hitler.)

And so it may be the case that a majority of justices decide that Roe is like Plessy — a decision that has stood for 50 years under an “egregiously wrong” understanding of the Constitution and overturn it regardless of the court’s stare decisis doctrine. They may decide to get the courts out of the abortion debate, in which they are asked every year to decide whether some state’s regulation is or is not an undue burden — and return the question to the states and the voters. If the justices overturn Roe and Casey, each state would decide for itself whether and when to prohibit abortions.

2. The Supreme Court abandons Casey’s viability test

The majority of Supreme Court justices might not want to make such a sweeping decision as reversing Casey. There was also plenty of discussion from all six Republican appointed justices specifically about Casey’s viability line.

Choosing viability as the dividing line between when states can bar abortion is arbitrary in some sense. The line isn’t the same in every pregnancy. It is also dependent on medical science, so the line has moved substantially since Roe and Casey were decided. And yet, as the viability line moves, the underlying legal issues don’t: The liberty interests of the woman who seeks to terminate her pregnancy don’t change between 20 and 24 weeks. Similarly, the life interests of the fetus don’t alter during that time either.

And while there are serious historical arguments to support the idea that the 14th Amendment’s liberty interest encompasses abortion rights, nobody has argued that there is any basis in the Constitution for a viability test on that right.

Chief Justice John Roberts seemed most persuaded that the way to uphold the 15-week ban was to get rid of the viability test altogether. As he noted multiple times during the oral argument, the viability line in Casey was dicta, meaning that it wasn’t necessary for the court to reach its decision and thus isn’t considered part of the court’s precedent.

So without the viability standard, the question for evaluating a state law would become: Does the law impose a substantial burden on a woman’s right to terminate her pregnancy, which would include whether the law provides enough time to allow her a reasonable opportunity to terminate the pregnancy. The international consensus is that around 12 weeks is the amount of time needed for unrestricted abortion access — if a woman finds out she is pregnant at, say, six weeks, that gives her another six weeks to obtain an abortion. And that is likely what the conservative Supreme Court would decide under this version of the Casey test too.

3. Uphold Mississippi’s 15-week ban but with no majority opinion

The problem with both of the scenarios above is that it’s not clear there are five justices to sign onto either option. Hypothetically, there could be four justices who want to overturn Casey (mostly likely Clarence Thomas, Alito, Neil Gorsuch, Kavanaugh) and two who want to maintain the court’s precedents but get rid of the arbitrary viability line (most likely Roberts and Barrett).

So what happens then?

In my hypothetical, you would have five votes to uphold Roe and Casey (Roberts, Barrett, Breyer, Sotomayor, Kagan) and six votes to uphold the Mississippi law (Roberts, Barrett, Thomas, Alito, Gorsuch, Kavanaugh). Which means Mississippi’s law would be upheld but without reasoning, meaning we’ll all be back at the court about another abortion case in short order.

The most likely outcome

So what’s the most likely outcome I foresee, based on what each of the justices signaled they were thinking during the argument? A 5-1-3 decision overturning Roe and Casey and upholding Mississippi’s 15-week ban on abortions.

As I mentioned, Alito, Kavanaugh and Barrett implicitly compared Roe to Plessy. Thomas focused on the lack of support for a constitutional right to abortion in the 14th Amendment’s language and history. Gorsuch emphasized the unworkability of the chief justice’s attempt to uphold the law while trying to squeeze it into Casey’s precedent. That’s five votes to overturn Casey and Roe.

The chief justice’s legal philosophy has encompassed judicial minimalism — deciding cases as narrowly as possible. In this case, he looks poised to concur in the outcome of upholding the 15-week ban but would argue that the court didn’t need to reach the issue of whether to overturn Roe and Casey because the 15-week ban could be upheld under Casey without its unnecessary viability test. So he would be in the majority in upholding the Mississippi law, but wouldn't concur with the other conservative justices in overturning Casey and Roe.

And then the three liberals would be in the minority, disagreeing with the decision to uphold the Mississippi ban on grounds of precedent and constitutionality.

Right now the justices are reviewing the briefs from the cases they heard this week and discussing pending cases with their clerks. On Friday, the justices will all meet in their conference room — without secretaries or clerks. The chief justice will open the discussion, and then each justice will offer their views of the case. At the end of that discussion, the most senior justice in the majority will assign the opinion to a justice to write. Between now and June, opinions, concurrences and dissents will fly around the courthouse as justices hone their arguments, answer their colleagues and sign onto each other’s reasoning. And the decision of the court will most likely be announced in June.

The question at this point is whether the chief justice can convince any of the other five justices after Friday to see the case his way.