Supreme Court Associate Justice Brett Kavanaugh, who is expected to be a decisive vote in Dobbs v. Jackson Women’s Health Organization, noted during Wednesday’s oral arguments in that case that not only is there historical precedent for overturning Supreme Court decisions that are “grievously” erroneous, but that in doing so, the court could restore its “neutrality.”

In questioning of attorneys before the court, Kavanaugh argued that because the right to abortion is not found in the Constitution, the Constitution is therefore “neutral” on abortion. That means abortion should be an issue for states or Congress to decide and the court should remain “scrupulously neutral on the question of abortion, neither pro-choice nor pro-life,” he suggested.

Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” Kavanaugh asked.