Will John Roberts Add a 'Twist' to Abortion Decision?

All eyes are on the chief justice, who favors narrow rulings over broad ones
By John Johnson,  Newser Staff
Posted Jun 20, 2022 10:10 AM CDT
With Abortion Ruling Imminent, Focus Shifts to John Roberts
Chief Justice John Roberts.   (AP Photo/Evan Vucci, File)

Is this the week that Roe v. Wade falls? The Supreme Court is poised to release its decision on a Mississippi abortion case that could end the federal right to an abortion. As the world knows, a leaked draft opinion suggests the court's conservative majority is poised to do just that. But it's possible things have changed since that draft opinion leaked in early May, and as an analysis at the Washington Post notes, the main focus is on what Chief Justice John Roberts will do. "The question is, if the justices do strike down Roe, whether Roberts goes along with it but adds his own twist, and then would such an opinion attempt to pitch any guardrails on abortion bans," writes Rachel Roubein.

What might this "twist" be? Politico has a long analysis on the subject, noting that some kind of Roberts compromise would be in keeping with his general view that "the court shouldn’t issue a sweeping decision when a more modest one would do," writes Josh Gerstein. He notes that during oral arguments in the Mississippi case, called Dobbs v. Jackson Women’s Health Organization, Roberts did indeed seem to be looking for a middle ground. The chief justice "suggested that the essential right to end a pregnancy could be maintained even if states were allowed to sharply limit abortion before viability outside the womb, which is generally considered to be around 22 or 23 weeks."

In Roberts' view, the central question may not be the age of the fetus, but whether a pregnant woman "has sufficient opportunity to get an abortion," writes Gerstein. All of which could lead to an "opinion that upholds Mississippi’s 15-week ban but claims to leave Roe in place," notes Gerstein. The upshot of both pieces is that when the ruling comes down, much will hinge not only on the language of the majority opinion but of the dissents, which will provide a blueprint for future legal fights. And as Tierney Sneed at CNN notes, a ruling that overturns Roe doesn't automatically make abortion illegal in the US. "According to the logic expressed in the draft decision (and with the caveat that it can still be changed before the final opinion comes out), the question of abortion policy would then go to state and local lawmakers—and potentially federal lawmakers as well." (More US Supreme Court stories.)

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