The U.S. Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization on Wednesday. The case stems from a Mississippi law that bans abortions after 15 weeks except for cases of medical emergency or severe fetal abnormality. The law has no exceptions for rape or incest. Given the current composition of the Court, Dobbs presents the biggest challenge to Roe v. Wade (1973) since Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

In 1992, fresh off the last six Supreme Court appointments, conservative Republicans thought the Rehnquist Court would overturn Roe, but were shocked when Casey instead affirmed it, and supplanted the trimester framework from Roe with the “undue burden” test. After Casey, the Court examines any restrictions on abortion by asking whether the law places a “substantial obstacle” in the path of a woman seeking an abortion before fetal viability.

In Dobbs, conservatives again are hoping a “new” Court will overturn Roe (and Casey). Oral arguments revealed a divided Court, but not just along pro-Roe and anti-Roe lines. Here are some brief observations.

• Justice Thomas was uncharacteristically vocal in these arguments. The Court’s most senior justice is known, from the bench, more for reticence than eloquence. Here, he focused on several issues, all of which underline his historic opposition to Roe. He asked attorneys about the foundation for the right to an abortion, the limits of autonomy as a constitutional concept, and the degree to which a woman’s interest supersedes other interests.
• Chief Justice Roberts was also an active participant. His questioning mostly pointed to possible lines of demarcation within the pregnancy other than fetal viability. This suggests that Roberts may be looking for a compromise, where the Court could uphold Roe and Casey, but let Mississippi’s law stand. This would keep the Court from handing down a blockbuster decision, while still giving more room for states to regulate. Detaching “undue burden” from fetal viability would do this.
• Justice Brett Kavanaugh has been something of an unknown on abortion. His questions suggested the Court should be neutral on abortion since it is not directly referenced in the Constitution, thereby consigning the issue to state politics. He also questioned whether it was possible for the Court to properly judge between the interests of the woman and the fetus, which suggests again a political outcome would be preferable to the hardening of a constitutional right.
• Justice Sotomayor was the most active participant of the Court’s “left” wing. She worried about the Court’s legitimacy if it struck down Roe, particularly if people might view the Court as a purely political body subject to public pressure and opinion. She said overturning Roe would conjure a “political stench” the Court could not escape. Her comparison of a fetus to a corpse, in the ability to respond to stimuli, was especially grisly.
• Justice Breyer seemed the most animated regarding the issue of precedent, a prominent theme throughout the arguments. He turned, time and again, to Casey‘s coronation of stare decisis as a justification for upholding Roe. (It is always amusing when progressives cling to the glories of precedent after voting to toss aside centuries of law on abortion, marriage, or the death penalty. For Breyer and Sotomayor, precedent really, really matters, except when it doesn’t. While I believe Breyer is arguing in good faith on this issue, it will be hard for originalists to care when they consider Breyer’s own voting history. For what it is worth, I suspect Breyer’s questions were aimed mostly at Chief Justice Roberts.)
• Justice Barrett considered the relationship between abortion rights and other established decisions involving privacy concerns, like same-sex marriage (Obergefell), the use of contraceptives (Griswold), or sexual activity between consenting adults (Lawrence). Her questions strongly implied a willingness to strike down Roe while leaving in place established law that has produced clear, workable standards for lower courts to adopt. The criticism, ultimately, is the undue burden standard in Casey is too nebulous and should be, at minimum, reconsidered.

It is always dangerous to speculate too much based on oral arguments. Some justices ask questions to explore a set of ideas, which may not indicate how they will vote. The precise nature of an opinion may also cause votes to switch back and forth. I have assumed Thomas and Alito will vote to overturn Roe and Casey, while Sotomayor and Breyer will vote to uphold them. Chief Justice Roberts will be concerned about thrusting the Court into a political quagmire, and may want to avoid a cultural bombshell. He also seems to prefer settling issues on narrow grounds when possible, and incremental changes bring less instability within the judicial system itself.

If we take the Justices at face value, which may be incorrect, there seems to be a majority in place for moving away from the undue burden standard in Casey as it is now understood. Kavanaugh, Gorsuch, and Kagan have shown a willingness to compromise in unexpected ways. Even Breyer might consider an undue burden standard disconnected from viability if it meant that Roe and Casey mostly survive. In other words, those who want to save Roe, could be forced into a compromise of upholding the Mississippi law. Or, it is quite possible Alito and Thomas are joined by Gorsuch, Kavanaugh, and Barrett, and Roe and Casey are buried, at least for now. The Chief Justice would then have a strong interest to join them so he could assign the opinion, and it would give the Court a stronger majority.

What is harder to envision is five or six justices so invested in the status quo that nothing changes. Three (Sotomayor, Breyer, Kagan) votes may be there, or four if Roberts thinks stability is best. Those four would need to persuade someone else to join. The newest justices (Barrett, Kavanaugh, and Gorsuch) would be the most likely candidates.

The Supreme Court conducts nearly all its business in private. We are aware of how the Court proceeds. There will be a conference where an initial vote is tabulated and the opinion is assigned. We know that opinion will be circulated between the justices, and some back-and-forth will occur, especially if it is a tight majority. What we don’t know is how this Court, with these personalities, at this particular moment in political time, will work together to produce a result. There has been intense pressure on the Court during the past several years. One political party has threatened to abolish the filibuster and pack the Court if it overturns Roe. Democrats are also starting to argue for the impeachment of Trump’s nominees to the Court. The social and political pressure will only increase over the next several months. Dobbs, if it overturns Roe, could also unleash protests, destruction, and violence. All the members of the Court know this, and some will be influenced by it. This makes Dobbs different, and it is why, ultimately, we should have little confidence in predicting what the Court’s opinion will look like come June.