The oral arguments before the Supreme Court in Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy, may give an indication of the future for access to the procedure, and for national politics. The New York Times columnists Michelle Goldberg, Charles M. Blow and Ross Douthat and the Times Opinion podcast host Lulu Garcia-Navarro gathered to discuss what they heard at the court on Wednesday, where they see it heading and how they, and the country, will continue to wrestle with the issue of abortion.
Michelle Goldberg: I don’t think there’s any doubt that this court is going to uphold the Mississippi law. To me the only question is whether it overturns Roe v. Wade altogether, or comes up with some new standard to replace viability, an outcome Chief Justice John Roberts seemed to be groping toward. My guess is it overturns. What do you all think?
Lulu Garcia-Navarro: I agree, all the justices showed their cards and their thinking on this issue. What fascinated me was how plainly the liberal justices — mainly Stephen Breyer and Sonia Sotomayor — spoke about the politics of this issue. Sotomayor’s comment about whether the court can “survive the stench” of overturning Roe was almost a direct appeal to Roberts, who has been vocally worried about how the court is viewed since the conservative majority has taken over.
Ross Douthat: Yes, it’s a peculiar situation where everybody assumes (rightly, in my view) that none of the conservative justices think that either Roe or Casey was rightly decided, so the question then becomes to what extent do they act like politicians — something Roberts especially is always ready to do! — as opposed to just following their legal convictions.
Charles M. Blow: I’m not enough of a court watcher to make that call, but it was interesting to listen to the liberal justices warning against it, heavily referring to the damage overturning Roe would do to the legitimacy of the Supreme Court. They rightly described the court as an institution that does not exist above public perceptions but depends on them. Without public trust the institutional damage is fatal.
Garcia-Navarro: I’ll just note that what several of the justices said in their hearings for confirmation about upholding precedent and settled law seemed not to be in evidence in this hearing.
Douthat: To the extent there was any “tell,” I suppose it would be that Brett Kavanaugh, whose vote is presumed necessary to secure some sort of compromise ruling short of a full overturn, declined to join Roberts in probing for the possibility of a compromise. I don’t rule out a compromise, relying on a revised undue burden standard that draws a line at 15 weeks instead of viability — but I don’t think the questions from the non-Roberts conservatives suggested that it’s particularly likely, and they did suggest reasons that it would be deemed unworkable.
Goldberg: Kavanaugh certainly didn’t display any openness to a compromise that would uphold Roe. Instead he emphasized all the times that overruling precedent served the cause of justice. I suppose there’s a tiny — and I mean really tiny — consolation in that he seemed unwilling to entertain extreme right-wing arguments that the Constitution prohibits abortion, as opposed to being neutral on it.
Douthat: The challenge is that when you have the court try to settle a controversial culture war issue, as it did using different frameworks and theories in Roe and then Casey, and none of its attempts at settlement actually make the issue go away and instead just make Supreme Court nominations central to our politics in a way they weren’t before, the problem of “institutional legitimacy,” as Charles mentioned, is there no matter what the court decides.
The abortion debate has already transformed the court into more of a perceived partisan actor than it previously was. I don’t know how much that changes if Roe is overturned — maybe it makes high court politics worse, or maybe we end up with polarizing legislative and congressional debates and the court recedes a little bit.
Garcia-Navarro: Ross, I would say that if you frame it as a “culture war” issue, you lose sight of the very fundamental issues that are at stake. Repeatedly, Kavanaugh tried to stake a claim to the idea that obviating Roe would allow the court some kind of “neutrality.” The problem with that argument is that what then happens is suddenly there will be states where abortion will be severely restricted because of so-called trigger laws, which essentially go into force when the federal protections on abortion are no longer in place. And there would be states where abortion access is easier. Again, it means pregnant people would often have to travel to get abortion care.
Douthat: I don’t mean to use “culture war” to minimize the issues in play. In general, I think culture war debates are usually the most important ones we have as Americans, and even when they’re settled, we remember them far longer than we do debates about, say, tariffs or taxation. The question is whether the court is capable of settling those debates; in general, its successful settlements seem — as with same-sex marriage, so far — to follow dramatic and unlikely-to-reverse shifts in public opinion rather than trying to end arguments that are extremely live and ongoing.
Garcia-Navarro: The argument on the pro-choice side is that this is settled law, though.
Douthat: Right, but it’s obviously not settled law in practice, insofar as the Casey decision literally called for the country to accept its settlement, and it has remained a defining issue in national politics ever since!
Blow: It was also striking to me how often conservative justices invoked civil rights case law, particularly those in which Black people had been harmed, in the questioning and arguments that tilted toward overturning Roe or agreeing to the Mississippi restriction, when Mississippi is the Blackest state in the union and Black women and families would be the most hurt by restricting abortion access. They used Black advancement to argue for Black oppression.
Goldberg: Charles, to me that was a sign of how deeply Kavanaugh is rooted in anti-abortion ideology. In the pro-life world, comparing Roe to Plessy v. Ferguson is a common rhetorical move. If only Kavanaugh would demonstrate so much concern for civil rights law when it came to things like voting rights.
Garcia-Navarro: The other thing we know is that many of the women who seek to get an abortion are lower-income. Which means we are penalizing women of low means, while we know women with more money will be able to afford to travel to get an abortion. It doesn’t resolve the issue of abortion in this country, and under no circumstances will overturning Roe be seen as neutral.
Goldberg: Something I’ve been thinking about a lot lately is that this will be my first experience, as a white woman, of losing rights. I’ve lived during a time when progress had seemed almost a law of history — bending toward justice and all that. I still think about taking my daughter, then a toddler, to vote for Hillary Clinton and imagining that she’d grow up in a less misogynistic world, one where female power was normalized.
Instead she’ll grow up with fewer rights than I had. Black people, of course, have experienced things going backward in much more dramatic ways, so obviously I know regression is not unprecedented. But it’s a real source of shock and grief.
Blow: Michelle, civil rights in this country has always been a bit like doing the cha-cha: a few steps forward, then a few steps back. Rights are never forever won. They must be constantly, vigilantly defended. And, unfortunately, they are sometimes lost. This dance is beaten into the blood of Black people in this country.
Douthat: And I suppose I would be grateful for the opportunity to build a society that does not assume that my three daughters’ status as equal human beings depends, practically or constitutionally, on their right to kill their own unborn children in utero.
Blow: Oh, Ross, the drama. Hah! You veered into the more philosophical question of what is a child, of when a group of cells becomes a child and therefore a person. Essentially calling every woman who terminates a pregnancy a murderer is wrong. I understand that people disagree on this, on scientific, philosophical and religious grounds, but here I strongly defend a woman’s right to choose. That’s what I want for my daughter.
Douthat: I don’t think we’ll settle the philosophical question here, Charles. And I don’t mean to be dramatic, I’m just trying to be responsive and distill the stakes: Michelle feels that overturning Roe would deprive her daughter of full citizenship; I don’t think the promise of full citizenship should depend on abortion.
Goldberg: Ross, I’m not sure what that means. I know the anti-abortion side has lately made the argument that women don’t need abortion for equality, and that in the absence of legal abortion, society may be forced to adapt to the demands of childbearing. But none of that changes the existentially degrading and terrifying possibility of being forced to go through pregnancy and birth against your will.
Garcia-Navarro: When we talk about the issue in the abstract, we often forget the real stories. My life has intersected twice with abortion. I had one in my early 20s, and if I had not, I certainly wouldn’t be arguing this issue in The New York Times. The second time was in Brazil, where I was considering having another child. I was over 40, and I was concerned that if something went wrong I would not be able to terminate the pregnancy safely. It was a factor in my calculations. And so what I would urge us all to think about is that there are many types of abortion stories and there are millions of women who have had them for all sorts of reasons.
Goldberg: These are also experiences that many women will never recover from. I have two very wanted kids, but both pregnancies changed my body for the worse, and I don’t mean just cosmetically. Luckily I’ve been able to spend thousands of dollars on physical therapy and bodywork to deal with the muscle and joint injuries that come from a weakened abdomen. Obviously not everyone can do that. And the injuries I’m describing are on the very mild side. Julie Rikelman, who argued against the Mississippi law, said it was 75 times more dangerous to give birth in Mississippi than to have a pre-viability abortion.
Douthat: There are absolutely limits to what even the most generous society can do to help women carry those burdens; part of that burden is irreducible and nontransferable. But once the child exists, outside of the cases where its imposition is literally forced on the women — rape and incest — the just society has to put all its efforts toward making the experience something other than degrading and terrifying, not toward using lethal violence. And in many, many cases that end in abortion right now, what makes the situation terrifying is material circumstances, not the child itself. This is where conservatives have not done enough, and should and must do more, to lift or ease those burdens, including on basic issues like maternal care that affect all pregnancies, wanted and unwanted and in between.
Blow: Abortion is not “lethal violence.” Good grief.
Douthat: It may be many other things, and as necessary as Lulu suggests, but it certainly is that.
Blow: No, sir, it’s just health care for women.
Garcia-Navarro: I’ve lived in countries with no abortion access, including Brazil, and I’ve reported on what happens in places where there is no access to safe abortion. And what you see is that women are forced to have unsafe abortions, and primarily lower-income women bear the brunt of the outcomes for their health and safety. And it doesn’t actually stop abortions there.
Goldberg: I’ve also reported from a lot of countries where abortion was illegal and visited hospitals where the obstetrics wards were full of women recovering from botched or septic abortions. And I’ve been to countries where unexplained miscarriages lead to criminal charges. Given that we already prosecute women for miscarriages tied to illegal drug use, I have no doubt that the end of Roe is going to lead to women going to jail. I do hope that the advent of the abortion pill means that self-administered abortions are safer than they used to be.
Garcia-Navarro: I agree — we’ve very clearly seen the record on outcomes for women in societies without a safe and legal path for abortion.
The argument that has been made by many, including you, Ross, is that abortion restrictions work.
Douthat: Laws restricting abortion in developed countries and in U.S. states do lead to lower abortion rates.
Garcia-Navarro: Sure, fewer abortions are being performed in Texas since the restrictive law was put into place, something like a 40% decrease. But we are seeing a surge of pregnant people traveling to other states to get abortions. We are also seeing more medical abortions with pills being shipped via mail and women having such abortions at home that wouldn’t necessarily show up in the figures. So are there fewer abortions in Texas? Maybe. Are there fewer abortions overall? I am not sure that is clear.
Goldberg: If Roe is overturned, what do you think the immediate repercussions will be? Democrats are obviously hoping for an explosion of outrage that will rekindle some of the energy of the anti-Trump resistance.
Douthat: I expect some kind of surge in liberal energy and activism, not just nationally but in purple and reddish states where abortion law will become immediately contested, and I would expect it to hurt Republicans somewhat in 2022. That said, I expected more energy and activism following the Texas law going into effect than we’ve seen, so I have even more uncertainty than previously about what lies beyond such a ruling.
Garcia-Navarro: This country will be philosophically divided on abortion and literally divided in access. Some women will have access to safe abortions, and others in states where it is immediately restricted will not. The repercussions will be vast. But it will be a clear victory for the patient and painstaking work the right has done on this issue, and I think difficult to undo.
Blow: I think the damage to the integrity of the court will be irreparable.
Garcia-Navarro: And that!
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