Will the Supreme Court Overturn Roe or Prop It Up with a Compromise?

On Wednesday, the Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization, the second of two major cases this term involving abortion. Since the Roe v. Wade decision in 1973, with some modifications in Planned Parenthood v. Casey in 1992, the Court has considered abortion a right protected by the Constitution. Following the Court’s decisive rightward shift last year, observers expected it would soon take a swipe at Roe or even overturn it. Wednesday’s oral argument seemed to confirm that expectation.

The term’s first abortion-related case involved consolidated challenges to SB 8, a Texas law enacted earlier this year that bans abortions “after detection of an unborn child’s heartbeat”—around six weeks’ gestation. That threshold ignores the one set forth in Casey for when states can regulate abortion: “viability,” the stage at which a fetus can live outside the womb, approximately 24 weeks.

As a means of avoiding judicial review, SB 8 entices private parties to enforce the law for a monetary reward. Although the procedural peculiarity of that “bounty hunter” provision gives the Court a way to resolve the Texas case without wading into Roe, it’s telling that a majority of justices twice refused to temporarily stall enforcement of the law. Given that at least five members of the Court were content to leave in place a law that undermined its own precedent, it is no surprise that the Court seems poised to move against Roe now that it has that option squarely before it in Dobbs.