The Supreme Court Is Itching to Overturn Roe v. Wade

Yesterday, the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health, the most pivotal abortion rights case in decades. While a ruling won’t come until the Justices wrap up the term in June 2022, their decision could further upend the already fragile abortion care network in Texas and devastate care in states across the country. 

During two hours of oral argument on Wednesday morning, the six-member conservative majority—Justices John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett—did little to allay those fears, appearing poised to either overturn Roe directly or allow states to bar care at the 15-week mark. 

“Why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” Justice Kavanaugh said. “There will be different answers in Mississippi and New York … because there are two different interests at stake and the people in those states might value those interests somewhat differently.”

Meanwhile, liberal justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer indicated they would oppose the 15-week ban. Sotomayor sharply cautioned that overriding Roe or the 1992 abortion rights case Planned Parenthood v. Casey—which prevented states from passing abortion laws that impose an “undue burden” on women seeking care—would undermine the Court’s credibility. 

“Will this institution survive the stench that this creates in the public perception that the Constitution and its readings are just political acts? I don’t see how it is possible,” Justice Sotomayor said. “If people actually believe that it’s all political, how will we survive?”

Dobbs v. Jackson Women’s Health challenges a Mississippi law that bars abortion after 15 weeks of pregnancy. Since Supreme Court precedent recognizes the right to end a pregnancy before viability, or around 23 weeks, the case constitutes a direct challenge to Roe v. Wade. Dobbs places the landmark 1973 decision—which enshrined abortion care as a constitutional right and prohibited states from banning the procedure prior to fetal viability—in danger of being overturned directly.

Thanks to nominations by former President Donald Trump—and former Senate Majority Leader Mitch McConnell’s successful gambit to wrest a seat away from former President Barack Obama—conservatives now have a supermajority on the bench. With three new anti-choice justices (Gorsuch, Barrett, and Kavanaugh), Mississippi state officials seized the opportunity to strike at the heart of Roe. The fact that the Court decided to take up the case rather than rely on set abortion precedents is telling in itself. 

While states across the country brace for the possibility of a post-Roe world, the Supreme Court’s refusal to block Texas’ draconian abortion ban in September has already given our residents—and the nation—a preview of what that bleak landscape will look like. 

For three months, Texans have not been able to access abortion care in their home state past six weeks of pregnancy, devastating a reproductive health network that already faces multiple barriers to access. Providers have had to turn away hundreds of vulnerable patients seeking care, leaving them traumatized and forcing them to travel outside of the state. Some have had to carry pregnancies to term against their will. 

Senate Bill 8 has caused a ripple effect throughout the U.S. as clinics in neighboring states have been overwhelmed with an influx of patients who have fled Texas for care. About one-fourth of the patients at Jackson Women’s Health—the very clinic in Mississippi at the center of Dobbs and the sole abortion provider in the entire state—now come from Texas. 

For many of the seven million women of reproductive age in Texas, Roe already feels meaningless. 

And if the Supreme Court chooses to overrule Roe, Texas is one of 12 states that would bar abortion care completely. This is because, during the previous legislative session, Republican lawmakers passed a so-called “trigger law” (House Bill 1280), designed to ban abortion immediately if Roe falls, “wholly or partly.” It offers no exception for rape, incest, or fetal abnormalities. The law would impose criminal felony penalties on providers 30 days following a Supreme Court decision and allow the attorney general to file suit and impose civil penalties of no less than $10,000. Texas Attorney General Ken Paxton has expressed support for the Mississippi ban every step of the way, leading a 24-state coalition calling for the reversal of Roe. What’s more, the state still has pre-Roe bans on the books that were never removed. 

Overall, about half the states in the U.S. are certain or likely to ban abortion without Roe in place, including neighboring Oklahoma, Louisiana, and Arkansas. Texans would likely be forced to drive an additional 525 miles to the nearest provider, according to The Guttmacher Institute. 

Despite the uncertainty over the future of Roe, attorneys with the Center for Reproductive Rights, who represented the Jackson clinic before the High Court, say they feel it is “critical to remain optimistic” as the “facts and law” are on their side. 

“We were able to put all of the key issues in front of the Court, which are 50 years of precedent that support this right—and Mississippi has not made any arguments for taking this right away,” said CRR Litigation Director Julie Rikelman during a press call. “We focused on how important the right is for women and their families […] and the ability for equal status in society. 

“I think we powerfully presented those arguments,” she added. “Now, it’s in the court’s hands.”