Chief Justice John Roberts might be abortion rights activists' only hope of avoiding a historic loss in the Supreme Court, Politico reported.
The court is expected to issue its ruling on abortion at any time during the next two weeks, before the justices begin their summer break.
Advocates on both sides of the abortion issue have increased their activity since early May when a draft opinion was leaked. It suggested the Supreme Court might be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide.
Roberts later confirmed the authenticity of the leaked draft opinion.
Some court watchers believe Roberts could be trying to form a compromise opinion – one that preserves a federal constitutional right to abortion in some form while giving states even more power to restrict that right – because the chief justice has said many times that the court shouldn't issue a sweeping decision when a more modest one would do, Politico reported Sunday.
"I think judicial decisions should be narrower, rather than broader," Roberts said at the University of Minnesota Law School in 2018, Politico said. "Courts sometimes get in trouble when they try to sweep more broadly than necessary."
To find a compromise solution with Dobbs v. Jackson Women's Health Organization, Roberts would need to convince at least one of his five Republican-appointed colleagues to sign on.
Lawyers for the state of Mississippi are asking the justices to uphold a law that would ban most abortions after the fetus has reached 15 weeks. The state also said it was time to erase Roe v. Wade, and Casey v. Planned Parenthood, a 1992 ruling that largely preserved abortion rights.
During arguments, Roberts suggested that the 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, Politico reported.
Roberts indicated that the pivotal issue for abortion rights might be whether a pregnant person has sufficient opportunity to get an abortion, not the age of the fetus.
"There is a point at which they've had the fair choice — opportunity to choice," Roberts said, Politico reported.
"Why would 15 weeks be an inappropriate line? Because 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?"
Curt Levey, president of the Committee For Justice, told Politico he thought the approach of upholding the 15-week ban and leaving other issues to other cases would be consistent with Roberts' philosophy.
"If ruling narrowly means anything, it means not going beyond what you need to decide a case," Levey told Politico.
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