The Supreme Court Seems Poised to Overturn Roe v. Wade
Roberts made his gambit more explicit in the form of a question to the lawyer representing Mississippi s sole functioning abortion clinic. He asked, If you think that the issue is one of choice … viability, it seems to me, doesn t have anything to do with choice. If it really is an issue about choice, why is 15 weeks not enough time?
To decode what Roberts was getting at, you have to understand that the Mississippi law, which prohibits abortion after 15 weeks, clearly violates Roe s viability rule. Viability is ordinarily treated in the law as occurring at around 23-24 weeks gestation.
Roberts was hinting that, if the core of Roe v. Wade is a woman s right to choose whether to have an abortion, but Roe allows the state to restrict abortion at some point in pregnancy, then there is no particular reason to treat viability as the cutoff.
According to Roberts s implicit theory, the justices could vote to uphold the Mississippi law while simultaneously saying that they were not overturning Roe v. Wade. They could hold that, properly interpreted, Roe allows states to restrict abortion at some point so long as they allow women enough time to end their pregnancies.
What would count as enough time? Here Roberts could, if he could get another conservative justice on board, rely on the Casey decision, which said that the government may not impose an undue burden on the right to abortion. The words undue burden could be said, on this view, to represent a sliding scale.
If the court took up Roberts s invitation, it would not need to say at how many weeks gestation abortion would have to be allowed. It could say only that there must be enough time that the woman s right is not unduly burdened. Such a conclusion would presumably still rule out the so-called fetal heartbeat laws like the one passed by the Texas legislature that ban abortion at six weeks gestation.
Roberts has long signaled that he wants to restrict abortion rights but also does not want the Supreme Court to arouse the potential backlash and loss of legitimacy that would come with overturning Roe. But he can t get there on his own. To control the outcome in the case, his decision would have to be necessary to the holding. That means that if the five other conservatives all vote to overturn Roe, an opinion by him proposing to move back the viability line to uphold the law would be a concurrence, not a controlling opinion.
In other words, Roberts needs one conservative to say Roe should be upheld and reinterpreted. Based on today s oral argument, that seems even more unlikely than it did before.
Noah Feldman.