Hey Conservative Justices, Here’s Why You Can’t Make Abortion Go Away

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Culture & Conversation Law and Policy

Hey Conservative Justices, Here’s Why You Can’t Make Abortion Go Away

Caroline Reilly

Overturning Roe v. Wade would only further delegitimize this Supreme Court. And it won't stop people from getting abortions.

For more coverage of Dobbs v. Jackson Women’s Health, check out our special report.

The Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, the most consequential abortion case since Roe v. Wade. On its face, the case is about Mississippi’s 15-week gestational ban, but what we have to lose runs much deeper than that.

Wednesday’s oral arguments were bad—like, truly terrible. Mississippi Solicitor General Scott Stewart, who argued for the state, took every chance to spew the most vile and batshit anti-abortion talking points to the highest court in the land, framing abortion as the taking of a life and very clearly saying the quiet part out loud: that anti-abortion lawmakers are gunning for fetal “personhood” and nothing less. They want to criminalize abortion out of existence.

But as we know, and as they know, you can’t make abortion go away. Nor should you want to. Abortion is health care! It’s a societal and moral good. It gives people access to self-determination and freedom. These bans only harm marginalized patients, which is exactly what anti-abortion politicians want.

Roe has collapsed and Texas is in chaos.

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Then there was Justice Clarence Thomas, who always sounds as if he’s just been woken up from a nap and wants to sleep a little longer. He took nearly every opportunity to discuss the case of a woman who used cocaine during her pregnancy and was prosecuted under child neglect laws.

This is egregious and terrifying for a number of reasons. First, drug use during pregnancy should never be criminalized, full stop. Criminalization has no place in pregnancy care—or drug use, for that matter. Furthermore, Thomas’ line of questioning echoes a macabre increase in the criminalization of adverse pregnancy outcomes—all part of the creeping notion of fetal “personhood” and the idea that any pregnancy that does not end in a live birth can be subject to scrutiny.

But the one sticking point for everyone, it seemed, was the concept of viability: the point at which a fetus is able to survive outside the uterus. Current medical research estimates that to be at about 23 to 24 weeks. The state of Mississippi argued the goalpost should be moved earlier—to when a fetus responds to stimuli. (This is where Justice Sonia Sotomayor chimed in to point out that dead people can and do respond to stimuli as well.) But proponents of 15-week bans and other pre-viability abortion bans know—and we know they know—that if the Court allows a 15-week ban to go into effect, it won’t stop there.

The relevant existing precedent on abortion is as follows: Abortion must be legal in every state; it can only be restricted if the law does not pose an undue burden; pre-viability bans are an undue burden. Fifteen weeks is well ahead of viability, and a 15-week ban is thus an obvious constitutional violation. So the Court even deciding to hear this case was a bad sign.

But what would happen if the Court allows the ban to go into effect, as seems likely? The ruling would reverse the notion that pre-viability bans are an undue burden, which would radically reframe the definition of that standard, allowing basically any abortion restriction to go into effect and essentially overturning Roe v. Wade.

Beyond that, it’s critical to point out that fetal viability has no place in the law. Abortion opponents will always find a way to use that measure to their advantage. Some conservative justices raised the point Wednesday that as medical technology advances, the ability for a fetus to survive outside the uterus will likely move earlier in pregnancy. But even without that, viability is a medical concept, not a legal one, and it should not inform the legal framework of abortion.

There is no compromise here: 15 weeks is not a compromise for six weeks; 22 is not a compromise for 15. Roe v. Wade politicized and moralized a medical procedure by contextualizing it as a right that can be taken away at any moment—that was the compromise. The Supreme Court got us into this mess, and with a conservative supermajority on the bench, it’s unlikely it will get us out. Overturning a decades-old precedent would only further delegitimize a Supreme Court in which stolen seats are tipping the scales.

As Sotomayor asked during oral arguments: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”