During its recent oral arguments in Dobbs v. Jackson Women’s Health, the Supreme Court considered “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” Although scrutinizing the statements and questions of Justices for clues as to their views on the merits can often be a fool’s errand, the exchanges in Dobbs provided several useful data points as to this important question.

Right from the start, Mississippi Solicitor General Stewart, arguing in support of the state’s 15-week abortion ban, presented the viability line as an inextricable and fatal flaw in the Supreme Court’s abortion jurisprudence. He urged the overturn of Roe and Casey so that “the people” would once again have the ability to protect preborn life after weighing the various “liberty” and “life” interests of both the pregnant mother and her child. As questioning progressed, Chief Justice Roberts seemed to focus in on the viability standard, theorizing that this temporal line, an admittedly arbitrary invention of Justice Blackmun, was not at issue in Roe or Casey and thus should be treated as dicta. Later, during Ms. Julie Rikelman’s argument on behalf of Jackson Women’s Health Organization, he further opined that “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?” These statements by the Chief Justice suggested to some observers that he might be angling for a “go-slow strangulation of Roe” by reinterpreting Roe and Casey to not bar the 15-week ban, thus punting on Roe’s ultimate fate.

When pressed by Justice Thomas on a possible alternative to viability, General Stewart suggested, “[the] undue burden standard, untethered from any bright-line viability rule.” But this proposal did not appear to find any takers either among the Justices or the parties. General Stewart himself went on to assert that rational basis review for abortion restrictions was the only way to “promote an administrable, workable, practicable, consistent jurisprudence that puts matters back with the people;” Ms. Rikelman pushed back against any efforts to extract the viability line from abortion precedent; and U.S. Solicitor General Prelogar, even under pointed questioning by Justice Gorsuch, defended viability as a principled and workable line. All seemed to be agreeing, at least in part, with Prof. Sherif Girgis’ pre-argument analysis that axing viability to uphold Mississippi’s ban, like removing the wrong piece from a precarious Jenga tower, would force the Court to completely reimagine the meaning of “undue burden,” potentially creating a “slippery” decision untethered from precedent or indeed any other legal source.

Although, as noted at the beginning of this post, it is imprudent to predict how Justices will vote from oral argument, the developments above illustrate how a principled middle ground between upholding and overruling Casey and Roe may prove hopelessly elusive, increasing the odds of a “winner-take-all” decision in Dobbs. With a majority of the Court expressing  sympathy for a range of arguments against the viability standard and in favor of Mississippi’s position, it seems more likely than it did before oral argument that at least five Justices, with Barrett and Kavanaugh as the deciding votes, will declare Roe and Casey themselves unviable as a matter of constitutional law.

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