By Robert Barnes
Shelly Tan

The Supreme Court on Dec. 1 will consider the most serious challenge in decades to its 1973 decision in Roe v. Wade that there is a constitutional right to abortion, and a 1992 reaffirmation of the right in Planned Parenthood v. Casey.

The court will consider a Mississippi law that bans almost all abortions after 15 weeks of pregnancy. It has not gone into effect because lower courts said it violated the court’s precedents that states may not ban the procedure pre-viability. That refers to when a fetus may survive outside the womb, which happens usually between 22 and 24 weeks.Story continues below advertisement

In accepting the case, the court said it would decide whether all pre-viability prohibitions on elective abortion are unconstitutional. But Mississippi and abortion opponents have asked the court to use the case to undo its precedents in Roe and Casey.

All nine of the justices declined during their confirmation hearings to opine on whether Roe v. Wade was properly decided, but past court rulings, public appearances and other public comments give insight into their thinking on abortion and court precedents.

Chief Justice John G. Roberts Jr.

Hard to peg

Roberts prefers an incremental approach to moving the law, which might counsel against overturning landmark decisions such as Roe v. Wade and Planned Parenthood v. Casey. And he sees himself as playing an important role in protecting the court’s independence. A change to long-standing precedent could be seen as partisan on a court with six conservative justices named by Republican presidents, and three liberals named by Democratic presidents.

At his confirmation hearing in 2005, Roberts declined all attempts to have him weigh in on the merits of Roe and the court’s abortion precedents, like all other nominees have done. He also said he was acting as a lawyer representing a client when he wrote in a legal brief filed by the George W. Bush administration that Roe v. Wade had “no support in the text, structure, or history of the Constitution.”

In past cases he has sided with decisions that would restrict abortions. In 2007, he was in the majority as the court upheld the federal Partial-Birth Abortion Ban Act of 2003,although he assigned the majority opinion to Justice Anthony M. Kennedy. In 2016, he was on the losing side when the court ruled that a Texas law that imposed restrictions on abortion clinics and doctors was unconstitutional.

But recently, Roberts has been harder to peg. In 2020, he joined the liberals in striking down a Louisiana law that was practically identical to the Texas one. Roberts said that he still believed the 2016 Texas case was wrongly decided, but that it would be a mistake for the court to overturn a decision from just a few terms from before. He also would have prevented the new Texas law S.B. 8 from taking effect. The law effectively bans abortion after six weeks and empowers individuals to bring suits against those who aid or abet prohibited abortions.

Justice Clarence Thomas

Has written that Roe was wrongly decided and should be overturned

Thomas has been a reliable vote for state restrictions on abortion, while urging Roe be overturned and lamenting that abortion rights seem to have a special status in the court’s jurisprudence. Moreover, Thomas is the justice least likely to adhere to stare decisis, the principle that past court decisions should be respected. He believes that if a past decision was wrongly decided, it should be overturned.

In his fall 1991 confirmation hearings, Thomas was vague on the subject of abortion. He testified that he could not remember “personally engaging” in discussions of Roe during law school and that he had no “personal opinion” about Roe’s correctness.

But his views on the matter became clear shortly after taking the bench. In 1992, he joined three other members of the court in Planned Parenthood v. Casey to say that Roe was wrongly decided.

After Casey, he began to write more strongly in his own voice in multiple dissenting opinions, including last year in June Medical Services v. Russo:“Roe is grievously wrong for many reasons, but the most fundamental is that its core holding — that the Constitution protects a woman’s right to abort her unborn child — finds no support in the text of the Fourteenth Amendment.”— Clarence Thomas, June Medical Services v. RussoStory continues below advertisement

Justice Stephen G. Breyer

Consistent abortion rights supporter

The 83-year-old justice has been a steady supporter of abortion rights, while acknowledging the “virtually irreconcilable” points of view on the issue.

In 2000, Breyer voted to strike down a Nebraska restriction, writing the majority opinion in Stenberg v. Carhart. He acknowledged the divide on the issue:“Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child … Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”— Stephen G. Breyer, Stenberg v. Carhart

He also wrote the court’s decisions to strike down restrictions in Texas and Louisiana. Breyer wrote in a 2016 opinion that the Texas law, which required doctors who perform abortions to have admitting privileges at nearby hospitals, imposed unconstitutional restrictions on clinics and doctors. He also wrote for the court’s liberals in the Louisiana case, where he called the law “almost word-for-word identical” to the Texas one.

Breyer was among the four dissenters when the court allowed a Texas law prohibiting abortions after six weeks to go into effect in September. S.B. 8 presented unique questions, he wrote, but should not foreclose the “ability to ask the Judiciary to protect an individual from the invasion of a constitutional right — an invasion that threatens immediate and serious injury.”

Justice Samuel A. Alito Jr.

Previous support for restrictions

The George W. Bush nominee has never voted to strike down a restriction on abortion during his time on the court. But he has not yet been called upon to decide whether Roe and Casey should be overturned.

Before he was nominated, Alito said he was proud to have argued that “the Constitution does not protect a right to abortion.” These statements, which he made as a member of the Reagan administration, came up during his confirmation hearing in 2005.

As a federal appeals court judge, he voted to uphold the Pennsylvania abortion restrictions that were the focus of the Supreme Court’s Planned Parenthood v. Casey, including a requirement of spousal notification before obtaining an abortion.

The Supreme Court disagreed on the spousal notification requirement in Casey, although it upheld the other restrictions that Alito voted to approve. The court also used the case to uphold the basic premise of Roe: that the constitutional right to abortion means states may not impose an undue burden on that right pre-viability.Story continues below advertisement

Justice Sonia Sotomayor

Reliable vote for abortion rights

Sotomayor was a longtime district and appellate judge but was never called upon to act in an abortion rights case. When President Barack Obama nominated her in 2009, some liberals were concerned about her lack of record on the issue.

But she has been a reliable vote for abortion rights in her tenure, and with the death of Justice Ruth Bader Ginsburg, the court’s most outspoken advocate.

Sotomayor objected to the court’s 2021 decision to reimpose restrictions on obtaining medication abortions, channeling the late Justice Ginsburg:“One can only hope that the government will reconsider and exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times”— Sonia Sotomayor, Food and Drug Administration v. American College of Obstetricians and Gynecologists

Like the other liberal justices, she would have stopped Texas S.B. 8 from being implemented, and was sharply critical of her colleagues who voted the other way:“The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”— Sonia Sotomayor, Whole Woman’s Health v. Jackson

Justice Elena Kagan

Previous support for abortion rights

The liberal Kagan also has been a consistent vote to strike down state restrictions on abortion. She is the only member of the court who did not serve first as a judge, so her record on the issue was also largely unknown. But she had served in the Clinton administration and was President Barack Obama’s solicitor general, so it was assumed she would be supportive.

Kagan has not written any of the court’s major decisions on abortion. But she filed a dissent when her colleagues allowed Texas S.B. 8 to go into effect:“Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. … This Court’s shadow-docket decisionmaking every day becomes more unreasoned, inconsistent, and impossible to defend.”— Elena Kagan, Whole Woman’s Health v. JacksonStory continues below advertisement

Justice Neil M. Gorsuch

Few rulings on abortion

Gorsuch may be the justice with the thinnest record on abortion. He did not rule on the issue as a lower-court judge and has not written extensively on the subject. However, he is one of the court’s most conservative justices, and has not shown hesitation about reexamining and overturning past decisions he thinks are wrongly decided.

He would have upheld restrictions on abortion clinics and practices in Louisiana, despite the court’s decision to strike down a similar Texas law before he was on the court. Gorsuch also would have allowed the Louisiana law to go into effect while litigation continued, and later complained the court discards “the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.”

He was also in the five-justice majority that allowed Texas S.B. 8 to go into effect.

Justice Brett M. Kavanaugh

Conservative but incremental

President Donald Trump vowed to add justices to the Supreme Court who would overturn Roe, and Kavanaugh’s name was added to the president’s shortlist after his writing on abortion while a judge on the U.S. Court of Appeals for the D.C. Circuit. But Kavanaugh has sometimes proposed compromises that others have rejected.

He was on a panel that postponed an abortion for a 17-year-old immigrant who was in government custody, saying if she could get a sponsor, she could have the abortion without the government’s involvement. The full circuit overturned that decision, and Kavanaugh’s attempt at compromise pleased neither side. Abortion rights activists called it an audition for the Supreme Court, while abortion opponents said Kavanaugh should have found immigrants have no constitutional right to abortion.

On the Supreme Court, Kavanaugh voted to uphold a restrictive Louisiana law, but again proposed a compromise. He said more fact-finding was necessary to determine how the restrictions affected the doctors who perform the procedure.

He has taken a more incremental stance on the issue than some of the court’s other conservatives. Despite joining five other justices in allowing Texas S.B. 8 to go into effect, it is unclear whether he would be willing to overturn Roe.

Justice Amy Coney Barrett

Conservative but sometimes reluctant to overturn precedents

Despite Barrett’s antiabortion views and deep faith, she has indicated that she would separate her personal views from her duty to respect the court’s precedents.

She has previously opposed abortion and criticized the Roe decision. As a Notre Dame law professor in 2006, Barrett and her husband signed a letter to “oppose abortion on demand and defend the right to life from fertilization to natural death.”

In 2016 at a university appearance, she said Roe v. Wade would likely stay in place when answering a question about how the Supreme Court’s legal theory might change with additional conservative justices:“I don’t think the core case — Roe’s core holding that, you know, women have a right to an abortion — I don’t think that would change. But I think the question of whether people can get very late-term abortions, how many restrictions can be put on clinics — I think that would change”— Amy Coney Barrett

Her previous rulings indicate support for abortion restrictions. As a judge on the U.S. Court of Appeals for the 7th Circuit, she voted to reconsider decisions that blocked abortion restrictions in Indiana. On the Supreme Court, her only vote in her first year with the majority allowed Texas S.B. 8 to go into effect.

But in her first term on the court, she seemed more comfortable with moving the law incrementally, and did not vote to overturn some precedents that her conservative colleagues proposed.