Jessie Hill had pegged the chances of the Supreme Court overturning Roe v. Wade, the 1973 decision that legalized abortion nationwide, at about 40 percent. But after Wednesday, when the Supreme Court heard arguments over a case over a Mississippi 15-week abortion ban, Hill dramatically revised her assessment of Roe’s demise.
“I now put that at a 70 percent chance,” said the Case Western Reserve University law professor, who specializes in reproductive rights.
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Mary Ziegler, who studies the legal history of reproduction at Florida State University College of Law, thought the justices had an even higher chance of overturning Roe.
“1 million percent,” she said. “1 million. I can’t emphasize that enough.”
Given that the Supreme Court is now dominated 6-3 by conservatives—three of them handpicked by former President Donald Trump—abortion rights supporters had never been exactly hopeful about what Dobbs v. Jackson Women’s Health Organization may mean for abortion rights. But the arguments on Wednesday were particularly disappointing for many on the left, as many of the justices eagerly explored the idea of entirely rewriting U.S. abortion law.
Now, Roe and Planned Parenthood v. Casey, a 1992 Supreme Court decision that affirmed the right to abortion, are up in the air. If Roe goes, more than half of U.S. states would have no legal protections for abortion, an analysis by the Center for Reproductive Rights found. Twelve states have “trigger laws” that would ban all or almost all abortions once Roe is overturned, according to the Guttmacher Institute, which tracks abortion restrictions.
What happens next?
In a word: waiting.
The Supreme Court’s current term ends in June 2022, and the justices usually deliver their most significant opinions at the end. But if the justices follow that timeline, their decision to overturn Roe could be a grenade tossed right into the middle of the 2022 midterms.
Historically, abortion has influenced Republicans’ votes much more than it has driven Democrats’, but there are already signs that that’s changing. After Texas enacted a law to ban abortion as early six weeks into pregnancy, just 39 percent of Trump backers said that they considered abortion a very important issue. Among supporters of President Joe Biden, 51 percent said the same.
Before the law took effect, just eight percent of Democratic women said issues like abortion and contraception are their biggest concerns when voting, according to polling by Morning Consult. A week afterward, 14 percent of Democratic said those issues had risen into their top concerns.
No matter the outcome of the 2022 elections, however, it’s unlikely that Congress will move to legalize abortion nationwide anytime soon.
“In the Congress, we will not be enacting laws that tread on the purview of the 50 states,” Mississippi Sen. Roger Wicker, a Republican, said outside the Supreme Court on Wednesday. Asked if Congress would allocate money toward helping people who may be forced into having babies they can’t pay for, Wicker said, “I think we have a safety net. It hasn’t always worked very well under current law, so that’s an entirely different issue that’s much broader. But I don’t think that’s an argument in favor of maintaining the very non-mainstream position of Roe v. Wade.”
But Wicker is wrong: Support for Roe is mainstream. Abortion polling can be complex, given the lack of public knowledge around how abortion works both in practice and in law. But just 32 percent of Americans support overturning Roe, according to Gallup polling last summer. In fact, since the late 1980s, most Americans have backed the idea of keeping Roe. Major medical organizations, like the American Medical Association and the American College of Obstetricians and Gynecologists, also support abortion rights.
Will the justices definitely overturn Roe?
Before Wednesday, Ziegler believed that the justices had “some real anxiety about image management, about managing political backlash.” But afterward, she said, “These were not justices to me who sounded concerned about that sort of thing at all.”
Both Justices Sonia Sotomayor and Stephen Breyer repeatedly tried to draw attention to the importance of maintaining the Supreme Court’s legitimacy and respect for precedent. Sotomayor wasn’t subtle about it. Since passing its 15-week ban in 2018, Mississippi more recently passed a six-week abortion ban, she said.
“The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we’re doing it because we have new justices on the Supreme Court,” Sotomayor said. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
Justice Brett Kavanaugh, however, drew on a different judicial lineage. He rattled off a list of cases where the Supreme Court has overturned its past precedents—an apparent signal that he’s ready to do the same here.
“If we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this Court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and not stick with those precedents in the same way that all those other cases didn’t?” Kavanaugh asked.
Sotomayor pointed out that, in virtually all those cases, the Supreme Court was trying to hand individuals more rights, not less—the opposite of the impact of overturning Roe and Casey. But both Ziegler and Nicole Huberfeld, a health law professor at Boston University School of Public Health, were struck by Kavanaugh’s repeated mention of “neutrality.”
“I thought what was particularly troubling was Justice Kavanaugh’s ‘scrupulous neutrality’ language, as if somehow withdrawing protection of an individual right is neutral on the part of the Court. It is not,” Huberfeld said. “That ‘scrupulous language’ sort of seemed like it was designed to provide cover for exploring the possibility of no longer protecting this particular individual right.”
But she cautioned against totally writing off Roe and Casey. Although the oral arguments seemed dismal for supporters of abortion rights, it’s impossible to know what’s going on behind justices’ closed doors.
What if the Supreme Court doesn’t overturn Roe? What could they do?
The only conservative justice who didn’t seem totally sold on overturning Roe was Roberts, Hill said. In his questioning, Roberts repeatedly asked about the importance of the so-called viability line. Under past abortion jurisprudence, states are blocked from banning abortion ahead of fetal viability, the developmental benchmark at which fetuses are able to survive outside the womb. That typically occurs at around 24 weeks of pregnancy.
But even if the justices technically keep Roe alive on paper, abolishing the viability standard would be tantamount to “gutting Roe,” Hill said.
“It would just be a walk back from that most basic holding,” she said. “Casey opened the door to all sorts of regulations and burdens on abortion access, but still always seemed to hold the line that you cannot ban abortion before viability.”
Plus, if the Supreme Court eviscerates the viability standard, they’ll need to either set a new standard by which to test the legality of abortion restrictions—or leave it up to the lower courts to battle it out.
“I think it invites significantly more litigation,” Huberfeld said. “Is it 15 weeks? Is it six weeks? Is it eight weeks? Every state is going to come up with their version of what they think that is.”
If the Supreme Court overturns Roe, are other rights in danger?
One of the biggest questions at arguments on Wednesday was whether if the justices start to unwind the right to abortion, they may be on a path to walk back other protections—such as gay rights and access to birth control. Mississippi Solicitor General Scott Stewart insisted that abortion is “unique,” and that overturning Roe and Casey has nothing to do with other rights.
But none of the experts who spoke to VICE News were convinced.
“I think people should worry that their states are gonna ban birth control by calling it an abortion-inducing drug,” Ziegler said. Anti-abortion advocates often believe that IUDs and emergency contraception, like Plan B, cause abortions. (They do not.) “Simply by criminalizing abortion, they may be sweeping in some birth control anyway. The same goes for some aspects of infertility treatment.”
Hill believes that the Supreme Court will take up Stewart’s reasoning in its majority opinion and proclaim that abortion is “different” from other rights.
“That being said, I do think contraception is absolutely next on the horizon,” Hill said. “The folks who are behind this movement, that have been so successful so far, that’s gonna be their next target.”
At least one brief, by the anti-abortion group Texas Right to Life, explicitly called for the justices to use the Dobbs case to doom Lawrence v. Texas, the 2003 case that abolished sodomy laws, and Obergefell v. Hodges, the 2015 case that granted same-sex couples the right to marry, as approaching the guillotine.
“Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe,” the group wrote, urging the Supreme Court to write a decision that leaves Lawrence and Obergefell “hanging by a thread.”
Liz Landers contributed reporting.
