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Fate of Roe v. Wade Will Depend on 3 Justices

Analysts say Roberts, Barrett, Kavanaugh are the ones to watch
By Rob Quinn,  Newser Staff
Posted Dec 1, 2021 3:22 PM CST
Fate of Roe v. Wade Will Depend on 3 Justices
Center for Reproductive Rights Litigation Director Julie Rikelman, who represent the Jackson Women's Health Organization, Mississippi's lone abortion clinic, leaves the US Supreme Court, Wednesday, Dec. 1, 2021.   (AP Photo/Andrew Harnik)

(Newser) – After Supreme Court arguments Wednesday, the future of abortion rights in America will now likely be decided by three justices, including the second two of Donald Trump's three nominees to the top court, analysts say—and it's not looking good for Roe v. Wade. All six conservative justices signaled Wednesday that they would uphold a Mississippi law banning abortions after 15 weeks, well before the viability line established in the 1973 decision, and some of them support completely overruling both Roe and Planned Parenthood v. Casey, the decision that reaffirmed Roe in 1992, the AP reports.

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Glenn Cohen, a professor at Harvard Law School, tells Insider that Justices Clarence Thomas and Samuel Alito, firmly in favor of overturning Roe, will likely be joined by Justice Neil Gorsuch, and there is no doubt that the court's three liberal justices will choose to preserve the decision. That leaves Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh, and all three of them appear to be open to upholding the Mississippi law. Roberts, a firm believer in sticking with precedent, may be unlikely to vote to overturn Roe altogether—but Barrett and Kavanaugh may not follow his lead. On Monday, Kavanaugh asked questions suggesting he favors leaving abortion laws up to the states, while Barrett suggested that "safe haven" adoption laws in all 50 states may have eliminated the need for abortion, Slate reports.

Of the three, Roberts and Kavanaugh appear most likely to seek a middle ground, writes Thomas Berman at CNN. Amber Phillips at the Washington Post, however, notes that "any kind of compromise would be a sea change for abortion rights in America," and if the court allows Mississippi's 15-week limit to stand, around half the country could soon be under similar laws. A decision is expected in June, and Cornell Law School professor Sherry Colb tells Insider that she's not in suspense about how Barrett and Kavanaugh will vote. "Both of them are opposed to Roe. They won't say it … but there's no mystery," she says. "It's just a question of whether it's going to be 5-4 or 6-3." (Read more Roe v. Wade stories.)

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