Republicans rued the abortion-rights votes of GOP-nominated Justices Sandra Day O’Connor, David Souter and Anthony Kennedy, all now retired, over the years.
But the current makeup of the court, with three appointees of former President Donald Trump and three other justices who have opposed abortion rights, provides a dynamic that found abortion opponents ecstatic at the court’s announcement and abortion rights supporters trembling.
Abortion has been the single most consistent and contentious subject of Supreme Court confirmations since the early 1980s, when Republican President Ronald Reagan made reversal of the 1973 Roe milestone a mission. Abortion politics have influenced the presidential screening of nominees, senators’ votes and the increasing force of special interest groups in the confirmation orbit.
Barrett declined to “pre-commit” on the subject of abortion. A devout Roman Catholic, she was the third appointee of Trump, who vowed to choose justices who would reverse Roe and return the issue to the states.
Barrett strengthened rightward pull on the bench. She also sealed the confidence conservatives expressed, and the dismay from liberals, that a new anti-abortion era was underway.
After months of internal debate on the matter, the justices announced on Monday they would add to their 2021-22 session a dispute over a Mississippi ban on abortions after 15 weeks. The controversy, which would likely be heard in the fall and decided by June of 2022, could eviscerate the heart of Roe v. Wade, which declared women have a constitutional right to end a pregnancy.
The dispute, Dobbs v. Jackson Women’s Health Organization, marks the start of the most momentous abortion battle since 1992.
The lower US appellate court that rejected the Mississippi law had written, “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban.”
For nearly 30 years, the justices spurned appeals that would have meant such a deep reconsideration of precedent. The court worked around the edges, in recent cases reviewing regulations on clinics and physicians, issues that affected women’s access to abortion but not the core right or viability line.
Newer justices increasingly complained about the pattern. Trump’s first appointee, Neil Gorsuch, wrote last year that in a “highly politicized and contentious arena … we have lost our way.”
But conservatives who voiced an interest in reversing prior decisions on abortion were no doubt unsure whether they would have at least five votes for a major decision.
The addition of Barrett plainly changed the calculus, and at a time when more states have passed bans such as Mississippi’s. Earlier this spring Arkansas adopted a near-total abortion prohibition with no exception for cases of rape or incest.
Until last year, Roberts had consistently backed abortion regulations. But in a Louisiana dispute, he provided the fifth vote (with the four liberals at the time) to invalidate a regulation similar to a Texas restriction the court had struck down in 2016.
As chief justice on a deeply split court in a turbulent era of American politics, Roberts has hedged his own ideological views, seemingly to steady the court and inspire public confidence.
But conservatives seeking curtailment of abortion rights may not need his vote. With the addition of Barrett, Roberts is no longer at the ideological center of the bench and no longer has the swing-vote power.
And now that the court has decided to reexamine abortion rights, the only question is how far the majority will go to roll back the nearly half-century-old declaration that the constitutional right to privacy covers the decision to end a pregnancy.