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Overturn Roe v. Wade? Conservative divisions could signal narrower outcome in abortion case

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An anti-abortion activist protests in front of the Supreme Court on June 29, 2020.
An anti-abortion activist protests in front of the Supreme Court on June 29, 2020.

WASHINGTON – When the Supreme Court agreed in May to hear a challenge to Mississippi’s ban on most abortions after 15 weeks of pregnancy, many saw it as a decisive move in the decades-long effort to overturn Roe v. Wade.

Though that remains one possible outcome, many of the high court's most significant decisions in recent months underscore that its six-justice conservative majority does not always operate in lockstep. A look at some of their past opinions and statements on abortion offers a more nuanced view that complicates pat predictions.

The Mississippi case, which the court could hear as early as November, will probably be the most closely watched on its docket in the next year – generating frenzied debate on one of the nation's most polarizing social issues before the 2022 midterm election. Unlike other disputes, the suit raises fundamental questions about the right to abortion.

"I don't know if there's a path to uphold the Mississippi law without reconfiguring abortion rights at least a little bit," said Neal Devins, a law professor at William & Mary Law School. But "I see no prospect for Roe being overturned."

Mississippi approved its prohibition on most abortions after 15 weeks in 2018 and is one of 16 states with pre-viability bans that have been blocked by federal courts, according to the Guttmacher Institute, a research group that supports abortion rights. The law has no exception for rape or incest but allows abortions in cases where there is a medical emergency or "severe fetal abnormality."

Roe concluded that women have a right to an abortion during the first and second trimesters but that states could impose restrictions in the second trimester. Two decades later, the court upheld that right but overturned the trimester framework and allowed states to ban most abortions at the point of viability, when a fetus can survive outside the womb – roughly 24 weeks. Pre-viability bans in conservative states are intended to challenge the court's precedent in those two cases.

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The question for the nation's highest court in the Mississippi case, Dobbs v. Jackson Women’s Health Organization, is where states may draw the line on prohibiting abortions. The answer, expected next year, will turn on how the conservative majority balances precedent against a generations-old struggle to weaken Roe.

Here’s a look at what the justices have said or written on abortion:

Chief Justice John Roberts concurred with the Supreme Court's liberal justices in a ruling striking down a Louisiana abortion law.
Chief Justice John Roberts concurred with the Supreme Court's liberal justices in a ruling striking down a Louisiana abortion law.

Roberts' minimalism

Chief Justice John Roberts brings an especially interesting history to the Mississippi case.

In the court’s most recent major abortion decision, a plurality led by Associate Justice Stephen Breyer struck down a Louisiana law last year requiring abortion providers to have admitting privileges at nearby hospitals. Roberts gave Breyer and the court's other liberals the fifth vote needed to reach that outcome.

Instead of signing onto Breyer's opinion in June Medical Services v. Russo with the three other liberal justices, Roberts wrote a concurrence in which he concluded that a 2016 precedent forced his hand. The court, Roberts wrote, must "treat like cases alike” and the Louisiana law was nearly identical to one from Texas the court invalidated years before.

The move squelched an outcry from liberals, who probably would have framed a different outcome as a political flip-flop after two conservatives joined the court in the four years after the Texas case. But by declining to sign the plurality opinion, Roberts gave conservatives a chance to pursue other anti-abortion laws, even though he had sided with Breyer and the liberals.

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Though no longer a swing vote, Roberts built similar coalitions this year between conservatives and liberals with narrow opinions that moved the court in a conservative direction more slowly than some had predicted. Assuming Roberts lands in the majority in Dobbs, experts said, he could attempt to repeat that high-wire act by crafting an opinion that undercuts Roe without directly overturning it.

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That could kick legal fights about the constitutionality of abortion down the road.

"I think what he would like to see from the court on an abortion case ahead of the midterm elections is something more narrow, something that does not explicitly overrule Roe, but something that perhaps eliminates viability as a salient concept in the court’s abortion jurisprudence," said Melissa Murray, a law professor at New York University.

That "would send the lower federal courts into a bit of disarray trying to determine whether a 12-week ban or six-week ban was permissible under the new standards," she said. "And that would set up a spate of litigation for the next two years."

Associate Justice Brett Kavanaugh greets President Donald Trump in 2019.
Associate Justice Brett Kavanaugh greets President Donald Trump in 2019.

Kavanaugh in the middle

When Associate Justice Brett Kavanaugh made the short list in 2018 to replace retiring Associate Justice Anthony Kennedy, some conservatives questioned his commitment to the anti-abortion cause. They pointed to one of his only opinions on the U.S. Court of Appeals for the District of Columbia Circuit that dealt with the issue: the case of a 17-year-old immigrant in federal custody who sought the procedure.

Kavanaugh appeared eager to avoid sweeping constitutional questions about abortion and immigration. When the appeals court in 2017 permitted the teen to end her pregnancy, Kavanaugh did not join a stemwinder of a dissent raising those issues. Instead, he wrote a more limited dissent defending the idea of having the teen first meet with an American adult sponsor, similar to a foster parent.

During his confirmation hearing, Kavanaugh called the court’s decision in Roe "precedent on precedent" and described the notion that women have a constitutional right to abortion as something that has been "reaffirmed many times over 45 years." Since then, Kavanaugh has emerged as the median justice, landing in the high court's majority in 97% of all cases during the 2020-2021 term, according to statistics compiled by SCOTUSblog.

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Kavanaugh dissented in June Medical, breaking with Roberts and asserting "additional factfinding is necessary" to evaluate whether Louisiana’s law would have closed the state’s abortion clinics.

Mary Ziegler, a Florida State University law professor, said abortion rights advocates will try to appeal to Kavanaugh's fealty to precedent. Abortion opponents, she predicted, will try to convince him to do what "you sort of assume he wants to do" while not pushing him too far.

"A lot of the same kinds of arguments about precedent and backlash that progressives have aimed toward Roberts will also be aimed at Kavanaugh," said Ziegler, author of "Abortion and the Law in America" and other books on the issue. "He shares Roberts’ concerns but also seems to think he can write more conservative opinions and finesse those concerns."

Barrett's first full term

Associate Justice Amy Coney Barrett has made her personal views on abortion clear.

Years before she was confirmed to the Chicago-based U.S. Court of Appeals for the 7th Circuit, while still a Notre Dame law professor, Barrett signed a two-page advertisement in the South Bend Tribune describing Roe's legacy as "barbaric."

During her Supreme Court confirmation hearing last year, Barrett said she didn't "have any agenda" to overturn Roe and said she would follow the "rules of stare decisis," the Latin term for the notion of precedent. Pressed about the ad during her hearing, Barrett said she hadn't remembered it until it surfaced in a newspaper story.

"Thirty years worth of material is a lot to try to find and remember," she said.

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None of that means Barrett would vote to overturn Roe. Some court observers have questioned whether she would make that decision so early. Barrett, who was confirmed in late October, will embark on her first full term on the court this fall.

"I would be stunned if she would want to go all the way to overrule Roe so early in her tenure on the court and let it define her,” said Devins at William & Mary.

Earlier: Barrett signed anti-abortion letter accompanying ad calling to overturn Roe v. Wade

Earlier: Barrett's law review articles show how Supreme Court rulings such as Roe v. Wade could be challenged

Barrett's best-known abortion case on the 7th Circuit came in 2018 in the form of a challenge to an Indiana law requiring fetal remains to be buried or cremated. After a three-judge panel invalidated the law, the full appeals court rejected the state’s request for reconsideration. Barrett dissented from that decision.

When Indiana appealed to the Supreme Court, a 7-2 majority upheld the state's law.

Associate Justice Neil Gorsuch called a Supreme Court decision on a Louisiana abortion law "a sign we have lost our way."
Associate Justice Neil Gorsuch called a Supreme Court decision on a Louisiana abortion law "a sign we have lost our way."

Gorsuch's textualism

Though he spent more than a decade as an appeals court judge in Colorado, Associate Justice Neil Gorsuch didn't directly confront constitutional questions about abortion. He did rule in cases touching on the issue, including over "Choose Life" license plates.

Gorsuch sided with abortion rights advocates in 2007 on a threshold question: whether a lower federal court had jurisdiction to decide if Oklahoma could deny funding collected from the specialty plates to an organization involved in "abortion related" activities, such as counseling. Gorsuch ruled the lower court could hear the case on the merits.

Months later, the district court did just that – and ruled against the group.

Gorsuch was more on point in a bristling dissent in June Medical, asserting that the court's usual process had been "brushed aside" to strike down the Louisiana law and that the decision was "a sign we have lost our way." Part of Gorsuch's argument was that the court ignored the state's ostensible reason for requiring abortion providers to have admitting privileges: to ensure the procedures were conducted safely.

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Steven Aden, chief legal officer at Americans United for Life, declined to predict how Gorsuch might approach Dobbs. Aden, whose group has fought for abortion restrictions for nearly five decades, noted Gorsuch has embraced his reputation as a textualist, the notion that jurists decide cases based primarily on the text of the law.

That, Aden argued, ought to augur well for the anti-abortion cause.

"Any judge who is a fan of an original, textual reading of the constitutional text – who's loyal to the intention of those who wrote it – is a friend of the right to life," Aden said. "He's also been one of the strongest federal judges on religious liberty, going back to the 10th Circuit."

Associate Justice Clarence Thomas called Supreme Court decisions on abortion "grievously wrong."
Associate Justice Clarence Thomas called Supreme Court decisions on abortion "grievously wrong."

Conservative stalwarts

Associate Justices Clarence Thomas and Samuel Alito, the court’s most reliable conservative votes, are the most likely to take on Roe directly.

Thomas, the most senior associate justice, wrote last year of the court’s "ill-founded abortion jurisprudence" in his dissent in June Medical. He described those decisions as "grievously wrong" and said they "should be overruled."

Before Alito's confirmation in 2006, a memo he wrote for the Justice Department in the 1980s surfaced in which he called for overturning Roe. Though Alito has been a consistent vote to support abortion restrictions, he has been more circumspect in discussing his broader views on the court’s precedents.

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Alito dissented in October when the Supreme Court said women seeking to end their pregnancies with medication didn't need to visit a doctor because of COVID-19 in the short term, a move he said used the "pandemic as a ground for expanding the abortion right recognized in Roe v. Wade." When the case made it back to the court in January, it ruled women were required to visit a doctor's office after all.

Alito dissented in June Medical, asserting the dispute should have been returned to the trial court for additional fact-finding.

Abortion rights supporters protest at the Supreme Court on March 04, 2020.
Abortion rights supporters protest at the Supreme Court on March 04, 2020.

Middle ground for liberals?

Based strictly on the size of their group, the court’s three liberals – Associate Justices Breyer, Sonia Sotomayor and Elena Kagan – are likely to be in damage control mode when the Mississippi case is decided, experts said. But as the term that wrapped up this month demonstrated, that doesn’t mean they are without influence.

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The court’s liberals joined with Roberts in one of the most closely watched cases this year involving a conflict between LGBTQ rights and religious freedom. A unanimous court concluded a Catholic foster care agency could decline on religious grounds to screen same-sex couples as prospective parents.

The opinion stopped short of what some conservatives wanted: The overturning of a decision in 1990 that makes it more difficult for religious entities to challenge generally applicable laws.

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More: Supreme Court foster care ruling likely to prompt more tests of religion

A similar lineup is possible in Dobbs: Liberals could join at least two conservatives in an opinion that does something less than overturn the court’s precedents. On the other hand, such compromise may be harder to reach on the divisive issue of abortion.

"What would a compromise look like in this case?" asked Ziegler, the Florida State University law professor. "If the court upholds this law and gets rid of viability or does something else that’s a pretty huge deal but stops short of overturning Roe, I don’t know how happy about that you’re really going to be if you’re Justice Breyer or Justice Kagan."

This article originally appeared on USA TODAY: Division among Supreme Court conservatives complicates overturning Roe

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