Compromise Hard To Come By in Historic Supreme Court Abortion Showdown

The justices this week will hear arguments on whether to overturn Roe v. Wade

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November 30, 2021

The Supreme Court on Wednesday will hear arguments in the biggest abortion case in a generation. Its ruling could disappoint everyone involved.

The case, Dobbs v. Jackson Women's Health Organization, centers on a challenge to Mississippi's 15-week abortion ban. But the state is defending its ban by asking the Court to overturn Roe v. Wade, an outcome the Court's liberal trio will push to avoid. The liberals may find willing partners among the more moderate conservative justices.

Such a compromise would anger social conservatives, who are making clear that they will not accept any decision that protects Roe. It would also alienate liberals who are likely to treat any result short of striking down Mississippi's ban as an assault on women's rights.

A decision in Dobbs is likely in July 2022, meaning that Wednesday's high-stakes clash will culminate just a few months before the midterm elections. The likelihood of a compromise decision hasn't chastened advocates on either side. Instead, they're taking uncompromising positions and favoring the ideological long war over short-term campaign calculus.

A compromise decision would likely involve reconciling Roe with Mississippi's 15-week ban. But advocates in both camps say there is no honest way to integrate the two under precedent. Any decision that does so would, they say, amount to judicial activism.

"There are no half-measures here," lawyers for a Jackson, Miss., clinic pointedly wrote in their main legal brief to the Court. The pro-life Susan B. Anthony List was equally emphatic in a statement to the Washington Free Beacon.

"There is absolutely nothing to be gained by the Court if it fails to overturn Roe," spokeswoman Mallory Quigley said. "Any other course of action will result in the loss of what credibility the Court has left."

Fetal viability is the touchstone to Roe and its principal successor, Planned Parenthood v. Casey. Those decisions forbid the states from banning abortion before a child can survive outside the womb and from placing "undue burdens" on access. But the interests shift once a child is viable. At that point, the states can restrict the procedure or ban it altogether.

When Roe was decided, the viability line was about 28-weeks gestation. With advances in medical technology, the timeline is now about 22 weeks, and some children have survived premature births occurring as early as 20 weeks. Despite those innovations, Mississippi's 15-week ban is well before the viability line. Therefore, there's no obvious way to reconcile the Roe-Casey rule with Mississippi's statute.

The Biden administration recognized as much in its brief to the High Court. The bulk of its filing is a full-throated defense of Casey and constitutional protections for abortion. The administration addressed the possibility of a compromise holding in a few pages buried at the back of its brief. Like many pro-life groups that support Mississippi's law, the administration warned that a modest, something-for-everyone outcome will prove "illusory."

Greenlighting a 15-week ban, the administration predicted, will encourage red states to enact still earlier bans on the procedure. Drawing a new line at 15 weeks provides "no principled basis for deciding the constitutionality of the 12, 10, 8, and 6-week bans that would inevitably follow," the brief reads. The Jackson clinic leading the fight against Mississippi's law was in full agreement in its own legal papers. It framed Roe and viability as an all-or-nothing proposition.

"Upholding the ban under [any] alternative rationale … would lead to the same thing: attempts by half the states in the nation to forbid abortion entirely, and a judiciary left without tools to manage the resulting litigation," the brief reads.

Pro-life organizations and lawmakers hammered the same point in their filings. Over 300 pro-life legislators filed an amicus brief that urges the Court to abandon Roe and return abortion regulation to the states. The brief extensively critiques the Court's abortion precedents and offers no alternate grounds for upholding Mississippi's law while salvaging a right to abortion.

"This Court now has the chance to right a constitutional, precedential, and historical wrong. The ability of the state legislators to perform their duty depends on it," the brief reads.

There's also the internal dynamic at the Supreme Court to consider. Overturning Roe will prompt a livid dissent for the ages from the liberal bloc. But moderation likewise roils justices on the losing end and can lead to bitter public disagreements.

Justice Clarence Thomas accused the Court of hypocrisy and elitism after it spent much of the last decade avoiding gun-rights disputes. Justice Samuel Alito in June similarly blasted the Court for wasting time and betraying believers when a six-justice majority resolved a case involving a Catholic adoption agency and gay foster parents on narrow grounds, avoiding a broad statement about religion and LGBT rights.

Nor did avoidance shield the Court from trouble down the line. Gun-rights groups kept filing appeals after Thomas's dissent and finally got a case into the High Court this spring. Likewise, the question of religious exemptions from LGBT civil rights measures will bedevil the Court in the future.

Abortion has also remained a feature of the Court's docket and the judicial confirmation process, despite Casey's plea that abortion partisans "end their national division by accepting a common mandate rooted in the Constitution."