The headlines are going to be so, so bad.
On December 1, the Supreme Court will hear arguments on a Mississippi law that bans abortions after 15 weeks of pregnancy. The law violates the landmark cases Roe v. Wade and Planned Parenthood v. Casey by prohibiting abortion before fetal viability—which is different for every pregnancy, but thought to be around 22-24 weeks—and practically everyone on earth expects the Court to uphold the law by next June. The Mississippi attorney general has asked the Court to overturn Roe entirely.
Meanwhile, the Supreme Court refused to block a Texas law banning abortions after 6 weeks of pregnancy, and lawsuits over that bill, SB8, are now on a collision course with the Mississippi case. Yesterday, the Department of Justice filed an appeal seeking to halt the law, making it possible that the Court could rule later this week on an emergency basis, but it may instead lump those lawsuits into the December 1 Mississippi arguments and rule on both laws at once.
One person in particular probably loves the latter scenario: Chief Justice John Roberts, who both opposes abortion and cares deeply about the court’s legitimacy. Hearing the cases together and striking down only the 6-week ban would allow the Court to look almost sensible to a certain segment of journalists and pundits—nevermind that upholding a 15-week ban ignores 50 years of precedent and would eviscerate Roe without ever having to say it’s been overturned. See, the Supreme Court isn’t a bunch of partisan hacks who need term limits!
Legal commentators will absolutely eat this up and claim it’s a compromise that disproves the progressive shrieking that the Court has been captured by the far-right Federalist Society. But the problem with saying that 15-week bans are OK is that states will start appealing their laws banning abortion at 12, 10, 8, and, yes, 6 weeks.
Roberts got to engage in this “moderate” cosplay last summer when the Court blocked a Louisiana law identical to a Texas statute that had been declared unconstitutional in 2016. But crucially, Roberts disavowed the reasoning of that 2016 decision, Whole Woman’s Health v. Hellerstedt, and opened the door for states to pass more restrictions. Lots of media coverage framed the decision as a big win for abortion rights and precedent, and certain masturbatory legal analysts claimed it was “mind-blowing” that Roberts voted with the liberal justices on an abortion case, when it was basically the Court doing the bare minimum and, in fact, chipping away at legal protections.
Repeat this to yourself and start telling your friends and anyone who will listen: It is not a compromise or a “win” if the Supreme Court blocks one unconstitutional abortion law but upholds another. Allowing either of these laws to stand is a tragedy for abortion access.