For media professionals who cover the U.S. Supreme Court, there’s an important lesson taught on the first day: It’s best not to predict the outcome of cases based solely on oral arguments.
After all, as court watchers know all too well, justices have a habit of playing devil’s advocate. Sometimes they think out loud from the bench. Occasionally, they’ll challenge attorneys on points just to see how they’ll respond. There’s no shortage of instances in which journalists are surprised to see a justice come down on one side of a case after seemingly leaning in the other direction during oral arguments.
Having said that, let’s go ahead and completely ignore the rule today — because as NBC News reported, the justices weren’t exactly ambiguous about their intentions this morning in a case that may prove to be one of the most important in a generation.
The Supreme Court appeared prepared Wednesday to uphold a Mississippi law that would ban nearly all abortions after 15 weeks of pregnancy, which would represent a dramatic break from 50 years of rulings. The justices heard 90 minutes of oral arguments in the most direct challenge to Roe v. Wade in nearly three decades over a Mississippi abortion law.
At issue is a law created by Mississippi Republicans, which banned abortions after 15 weeks of pregnancy. In Dobbs v. Jackson Women’s Health Organization, the district court and 5th Circuit Court of Appeals concluded that the state statute is unconstitutional under the Roe v. Wade precedent.
This morning, the Supreme Court’s dominant conservative majority seemed indifferent, if not overtly hostile, toward that precedent.
It’s possible the justices might try to find some kind of middle ground, upholding Mississippi’s abortion ban without completely overturning Roe, but a NBC News’ report added that at least four of the court’s conservatives — Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, and Brett Kavanaugh — suggested they’re prepared to reject the 1973 precedent.
Kavanaugh, of Donald Trump’s three appointees, was of particular interest because he seemed to argue that overturning Roe, and allowing states to make individual decisions on reproductive rights, reflected some kind of middle ground.
Summarizing Mississippi’s argument, the conservative jurist said, “[B]ecause the Constitution is neutral [on the issue of abortion], that this court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life, but, because, they say, the Constitution doesn’t give us the authority, we should leave it to the states and we should be scrupulously neutral on the question and that they are saying here, I think, that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue.”
For reproductive rights advocates, the high court’s newest member, Justice Amy Coney Barrett, was hardly any better. At one point, the Trump appointee, confirmed by Senate Republicans the week before Election Day 2020, suggested abortion isn’t altogether necessary since women can just put babies up for adoption — as if there are no physical, economic, or psychological costs associated with pregnancies.
“Why don’t the safe haven laws take care of that problem?” Barrett asked, adding, “There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.”
As for Chief Justice John Roberts, the conservative who now effectively represents the ideological middle of the current Supreme Court, he suggested this morning that Mississippi’s 15-week threshold doesn’t represent a “dramatic departure” from the existing viability standard. He did not, in other words, sound like a justice prepared to strike down Mississippi’s abortion ban. It’s important to remember, though, that with a six-member conservative majority on the nine-member bench, the court’s opponents of abortion rights don’t even need Roberts. He might try to join the majority in the hopes of taking the rough edges off a ruling, but Thomas, Alito, Gorsuch, Kavanaugh, and Barrett can do as they please on the issue, without much regard for the chief justice. A final ruling is expected in June. The full transcript of this morning’s oral arguments is online here. We’ll have plenty more on today’s developments on tonight’s show.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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