WASHINGTON (CN) — In the most consequential abortion case to come across the high court’s docket in decades, Chief Justice John Roberts stood alone Wednesday as he tried to convince his colleagues to chip away at the constitutional right to abortion without burning the whole thing to the ground.
The conservative Bush appointee has been often voted with his liberal colleagues and is known to want to preserve the legitimacy of the court as an impartial judicial institutional and not a bench of partisan jurists. While some of his conservative colleagues seemed eager to overturn the almost 50 year precedent of Roe v. Wade, Roberts repeatedly tried to convince them to take a softer approach.
The heart of Roberts’ arguments hung on the idea that the viability line of a fetus — its ability to survive outside the womb — was arbitrary and could be replaced.
“Viability, it seems to me, doesn't have anything to do with choice,” Roberts said.
The court held that women had the right to abortion with the 1973 decision in Roe, but states could limit that right after the second trimester. It would later reaffirm the right to abortion in the 1992 case Planned Parenthood v. Casey while changing the states’ right to intervene at the viability of the fetus instead of according to trimesters. The viability line currently stands around 23 or 24 weeks.
Roberts on Wednesday drew from the writings of Justice Harry Blackmun — who wrote the opinion in Roe — to say the precedent’s author didn’t even believe the viability line was central to the right.
“In fact, if I remember correctly, and I — it's an unfortunate source, but it's there — in his papers, Justice Blackmun said that the viability line was — actually was dicta,” Roberts said. “And, presumably, he had some insight on the question.”
Roberts’ line of questioning reflects a theme the country has seen before from the chief justice.
“The comments of the chief justice reflect the concern that the Supreme Court should help hold the country together rather than tear it apart,” Richard Bernstein, an appellate lawyer, said in a phone call.
While defending Mississippi’s Gestational Age Act — which bans all abortions after 15 weeks — Mississippi Solicitor General Scott Stewart asked the court to overrule Roe and Casey but he also attacked the viability line.
“Roberts was alone in examining a narrower argument that Mississippi has made — there have been two arguments, one that the court should overrule Roe and Casey entirely, and two, the court should overrule what the court has called kind of a core part of Roe that before viability, that states can't ban abortions,” said David Gans, director of the human rights, civil rights, and citizenship program at the Constitutional Accountability Center.
Besides quoting Blackmun, Roberts also picked at the idea that, if the viability line is an arbitrary standard, then why couldn’t the court just draw the line somewhere else.
“If it really is an issue about choice, why is 15 weeks not enough time,” Roberts asked.
In this way, Roberts floats getting rid of the viability line without having to overturn Roe. One of the possibilities for a ruling in this case — which will not likely be seen until June or July — would be nixing the viability line and replacing it with something else.
“I think one of the difficulties of Roberts’ approach is the question of what would replace the viability line,” Gans said. “Mississippi couldn't offer something that would take the place of viability. That leaves the law at sea. If the line isn't viability, and it's not 15 weeks — because that's where Mississippi’s ban is — is it 10 weeks, is it six weeks? It would be anathema to principled judicial decision making to throw out 50 years of precedent based on viability without saying what the line is.”