With the Supreme Court’s Roe v. Wade decision impending, members of the left are beginning to fantasize about possible alternative outcomes.
While the going theory, based on a Supreme Court leak from last month, is that the court will repeal Roe v. Wade, Politico’s Josh Gerstein believes the court might theoretically opt for a “compromise” instead, courtesy of squishy conservative Chief Justice John Roberts.
“Roberts would have to convince at least one of his five Republican-appointed colleagues to sign on to a compromise ruling that would preserve a federal constitutional right to abortion in some form while giving states even more power to restrict that right,” Gerstein wrote for Politico earlier this week.
But what exactly would the compromise look like? To imagine a possible outcome, one must first familiarize themself with the current case, Dobbs v. Jackson Women’s Health Organization.
The battle began in 2020 when Mississippi officials petitioned the court to uphold a law that would ban the majority of abortions after 15 weeks of pregnancy.
But by the time they were allowed to file their opening brief in 2021, the court had already adopted Justice Amy Coney Barrett as the late Justice Ruth Bader Ginsburg’s replacement. And so buoyed by this development, the officials chose to up the stakes by asking for Roe v. Wade to be outright terminated.
“This Court should overrule Roe and Casey. Those precedents are grievously wrong, unworkable, damaging, and outmoded,” their opening brief read.
In response, pro-abortion advocates argued for the complete opposite: Keep Roe v. Wade in play, and also deny Mississippi’s original request to merely ban abortion after 15 weeks of pregnancy.
Enter Roberts, who decided to stake out a middle ground position — as usual.
— Bo Snerdley (@BoSnerdley) October 20, 2020
“He suggested that the essential right to end a pregnancy could be maintained even if states were allowed to sharply limit abortion before viability outside the womb, which is generally considered to be around 22 or 23 weeks,” according to Gerstein.
To bolster this point, he argued that the relevant issue isn’t the age of the fetus but rather whether or not the pregnant woman has a “choice” in the matter, meaning whether or not she has the access to pursue an abortion if she wants one.
“Why would 15 weeks be an inappropriate line? Because viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?” he reportedly said.
In other words, 15 weeks is more than enough time for a woman seeking abortion to find an abortion clinic and proceed with the abortion, and so why should Mississippi’s law be an issue? And therefore, why not just compromise by leaving Roe v. Wade intact but gutting the viability factor.
OK but “When is it a living human being?” is IMHO the real question. Roe v Wade used “viability” but it’s flawed because ‘viability’ changes as medicine advances.
The heartbeat is a good marker of a living human being. That starts at 7-8 weeks gestation.
— Patrick McGuinness (@mcguinnessfortx) June 19, 2022
But both sides reportedly rejected the centrist position.
The pro-abortion advocates argued that without the viability factor, “there will be no stopping point.”
“Without viability, there will be no stopping point. States will rush to ban abortion at virtually any point in pregnancy. Mississippi itself has a six-week ban that it’s defending with very similar arguments as it’s using to defend the 15-week ban,” Julie Rikelman of the Center for Reproductive Rights argued.
Mississippi officials meanwhile argued that basing Roe v. Wade on choice/access would be problematic because it’s not an objective standard.
“It’s a very hard standard to apply. It’s not objective. You couldn’t say necessarily for certain that a certain number of weeks one place would be an undue burden but would be okay another place,” Mississippi Solicitor General Scott Stewart argued.
But on the other hand, precedent is on Roberts’ side, according to scholars.
“Some scholars note that there’s an obvious precedent for a Supreme Court opinion that purports to preserve the basic right to an abortion while allowing further intrusions on that right. That’s exactly what happened in 1992, when many expected the demise of Roe,” Gerstein noted.
“Instead, a highly unusual three-justice joint opinion in Casey dropped Roe’s trimester-based framework for abortion restrictions, switched to a standard involving when a fetus was viable and instructed courts to look at whether limits passed by states created an ‘undue burden’ on those seeking abortions.”
“It dramatically changed the preexisting legal doctrine without overruling what the controlling opinion called the essential holding of Roe v. Wade. Yes, it takes some judicial creativity, you might say, but it would not be difficult to imagine Chief Justice Roberts writing an opinion of a somewhat similar nature,” Indiana University law professor Daniel Conkle said to Gerstein.
However, and this remains key, even if Roberts does piece together a compromise, he’ll still have to convince enough of his peers both on the left and right that it’s worthwhile — and that will undoubtedly be no easy task.
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