NOEL KING, HOST:
Roe vs. Wade and the constitutional right to abortion access is now very much in doubt. After yesterday's historic arguments before the Supreme Court, the pillars of the court's abortion rulings seem to be faltering. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: With three Trump appointees now on the court, the new conservative supermajority was very much in charge at yesterday's argument. Not one of the court's six conservatives defended the notion of a woman's liberty rights when it comes to childbearing. That said, they didn't entirely agree with each other on how to proceed either. Before them was a Mississippi law banning all abortions after 15 weeks - two months before fetal viability. Roe and the decisions that followed it permitted abortions in roughly the first 24 weeks of pregnancy when the fetus is not viable. It can't survive outside the womb. For decades, the court has in one way or another, struck down laws like Mississippi's and stuck to the Roe framework. But not a single conservative member of the court seemed even remotely interested in continuing down that path yesterday.
The remaining question was, what path would they take, what would or could they agree on, and whether overturning the court's abortion jurisprudence would come in one swift punch or more gradually over several years. Three of the conservative six - Justices Thomas, Alito and Gorsuch - seemed willing to reverse Roe and perhaps other decisions that were based on the right to privacy and the liberty interest in personal autonomy. But Justice Kavanaugh indicated a reluctance about matters beyond abortion. Abortion, he seemed to suggest, is different because there are two interests at stake - the woman's interest in terminating her pregnancy and the state's interest in fetal life.
(SOUNDBITE OF ARCHIVED RECORDING)
BRETT KAVANAUGH: And the problem is that you can't accommodate both interests. You have to pick. Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?
TOTENBERG: Justice Barrett asked several questions about adoption as a way to mitigate the need for women to continue parenting after bearing a child. But she was the most difficult justice to read. In contrast, Chief Justice Roberts was clear about the path he was looking at - getting rid of the viability line but without having to explicitly overturn Roe.
(SOUNDBITE OF ARCHIVED RECORDING)
JOHN ROBERTS: And why would 15 weeks be an inappropriate line? 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?
TOTENBERG: The answer from reproductive rights lawyer Julie Rikelman was that once the viability line is breached, states will rush to adopt earlier and earlier bans. Indeed, she noted, Mississippi, after enacting the 15-week ban, passed another bill banning abortions after six weeks - a law that it is now defending in the lower courts. In the last analysis, Supreme Court decisions are something of a numbers game, and the critical number is five - five to make a majority. When the chief justice made clear he would not sign on to the viability framework, that closed the door entirely to maintaining Roe as we know it.
The only remaining question is whether Justice Barrett will join him in making this a two- or three-step dance to reverse Roe or whether she'll join the court's other four conservatives and make a fifth to overturn Roe now. When and if Roe is reversed, 26 states would be certain or likely to make abortion illegal within their borders, according to the Guttmacher Institute, which tracks reproductive health legislation. And there will be other repercussions, too - some of them legal, some almost certainly political. Nina Totenberg, NPR News, Washington.
(SOUNDBITE OF STAN FOREBEE'S "INTROSPECTION") Transcript provided by NPR, Copyright NPR.
