Think big, go small. That seems to be Chief Justice John Roberts’s approach to Dobbs v. Jackson Women’s Health, the Supreme Court’s most consequential abortion case in a generation.
Mississippi’s regulation prohibits most abortions after the 15th week of pregnancy. Though that is well past the point where a woman is aware of her pregnancy, it is significantly earlier than fetal viability — the stage at which an unborn child can potentially live outside the mother’s womb. Current medical consensus is that viability occurs at 24 weeks of pregnancy. But note that critical word: current. Medical technology constantly improves, so viability will always be a capricious standard — not an objective moment of human gestation between conception and birth, but a constantly-changing metric of scientific proficiency.
Why does that matter? Because viability is the straw at which the Supreme Court grasped in Roe v. Wade (1973) to establish when the state begins to have a cognizable interest in the life of the unborn child. Only then may it intrude on the woman’s right to terminate the pregnancy, the putative right the Roe court manufactured in an act of imperious judicial legislating. Because a 15-week restriction would necessarily forbid abortions that would be permitted under the viability standard that Roe purported to divine from the Constitution, it stands to reason that the court must invalidate Roe to uphold Mississippi’s law.
Let’s not forget, moreover, that Roe was substantially overhauled by Planned Parenthood v. Casey (1992). Put aside Roe’s illiteracy as jurisprudence. By the time Casey was decided nearly 20 years later, Roe’s fatal flaws as policy were patent — in particular, its facile “trimester” architecture for balancing the competing interests of the pregnant woman and the unborn child.
Rather than abort Roe, as fidelity to constitutional law would have dictated, the Casey court went political. That is the story of the court’s doleful half-century in the abortion thicket. Casey undertook to scrap the trimester formulation while continuing to hang Roe’s hat on viability, notwithstanding its manifest instability as a legal standard. The justices opaquely elaborated that, post-viability, states were at liberty to enact restrictions as long as they did not “unduly burden” a woman’s right to abortion.
As we’ve noted, Mississippi’s ban on pre-viability abortions violates Roe. A fortiori, it poses an “undue burden” under Casey. One would think that both precedents must go.
One of the most fascinating developments in Wednesday’s oral arguments was Chief Justice John Roberts’s demolition of viability as the linchpin of the Roe right — and with it, his powerful illustration of the overarching folly of judicial legislating. Digging through the published papers of Roe’s author, the late Justice Harry A. Blackmun, the chief justice spotlighted the concession that viability was an afterthought: It was not argued as a major issue in the case, and it was dicta in Blackmun’s opinion — i.e., not central to the court’s holding.
Yet, by the time Casey rolled around, the afterthought had become foundational, even as the rest of the Roe edifice was swept away. Viability is what the Biden administration and the rest of the pro-abortion opposition to Mississippi’s law contend is the framework of the liberty interest the court has erected. Roberts exposed it as an illusion.
Logic would make that Roe’s death knell, but this isn’t necessarily about logic. Roberts is clearly struggling to minimize the ramifications of eviscerating Roe’s underpinnings, fearful of the public reaction — meaning, the hysteria of the media-Democrat complex — if the court were to make the obvious explicit: Roe is such bad constitutional law that no one dares defend it as such (the arguments for preserving it are odes to stare decisis — the doctrine of respect for even wrongly decided precedent), but rest assured that a court renunciation of Roe and Casey would not ban abortion, it would leave the matter to the states and the democratic process.
The chief justice can’t do anything about Roe’s fatal flaws, but he might be able to constrict the lens through which the court assesses them. On Wednesday, he took pains to point out that the question the court agreed to review is a narrow one: Whether all pre-viability prohibitions on abortion are unconstitutional.
Interesting thing about that. Mississippi’s petition asked for three questions to be reviewed. Besides the one the court accepted, another asked for a searching analysis of Casey’s undue burden standard in light of Whole Woman’s Health v. Hellerstedt, which materially revised it in 2016 — effectively raising the bar for justifying state abortion restrictions. A third question would have probed third-party standing — i.e., whether abortion providers should be heard to complain about restrictions on a right that belongs not to them but to the woman seeking an abortion. As Justice Clarence Thomas pointed out in dissent at the time, the Hellerstedt majority permitted such claims, against the weight of court precedent.
The court did not agree to consider those two questions. Why did Roberts stress that fact? Probably because he hopes to sidestep a wholesale review and rejection of Roe and Casey, despite their infirmities. He may calculate that Roe need not be swept aside entirely to hold in Dobbs that the Constitution does not prohibit all pre-viability restrictions on abortion. That is, the only question before the court is whether a prohibition after 15 weeks is permissible. Answering that question in the affirmative would not necessarily require invalidating Roe if the court agrees to put blinders on and ignore the ultimate logic of that answer.
Okay, but what about 13 weeks … or seven … or none? Are there five votes on the Supreme Court for a go-slow strangulation of Roe that will keep it barely breathing, and keep both sides of this most divisive national debate fulminating, for years to come?
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.