Supreme Court hears historic case on fate of abortion rights

(WASHINGTON) — The U.S. Supreme Court on Wednesday heard arguments over a Mississippi law that would ban most abortions after 15 weeks of pregnancy and whether decades of legal precedent since Roe v. Wade should be overturned.

Since the 1973 landmark Roe ruling and a 1992 case that affirmed the decision, the court has never allowed states to prohibit the termination of pregnancies prior to fetal viability outside the womb, roughly 24 weeks.

Mississippi argues Roe was wrongly decided and that each state should be allowed to set its own policy.

Scott Stewart, the solicitor general of Mississippi, spoke first, saying that the precedents the Supreme Court set with Roe in 1973 and Planned Parenthood v. Casey in 1992 “damaged the democratic process” and “poisoned the law.”

“For 50 years they’ve kept this court at the center of a political battle that it can never resolve,” he said.

Justice Sonia Sotomayor questioned whether the court should have taken up the case since the legal right to an abortion based on viability has been a long-standing precedent.

“There has been some difference of opinion with respect to undue burden, but the right of the woman to choose, the right to control her own body has been fairly set since Casey and never challenged. You want us to reject that viability line and adopt something different,” she said. “Thirty (justices) since Casey have reaffirmed the basic viability line. Four have said no to the members of this court, but 15 justices have said yes or varying political backgrounds.”

Referring to comments from a Mississippi lawmaker, she said, “The Senate sponsor said we’re doing it because we have new justices on the Supreme Court,” noting the new makeup of the court with three conservative justice appointed by former President Donald Trump.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked.

Justice Sotomayor: “The sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices…Will this institution survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts?” pic.twitter.com/aXz9fo5L3q

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Justice Stephen Breyer stressed the importance of stare decisis — the legal principle that courts generally adhere to precedent.

“To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the court’s legitimacy beyond any serious question,” Breyer said.

Conservative justices homed in on the current viability standard of roughly 24 weeks, with Justice Samuel Alito describing the line set as “arbitrary.”

As Julie Rikelman of the Center for Reproductive Rights, representing Jackson Women’s Health Organization, the only abortion clinic in Mississippi, argued the impact of pregnancy, Alito responded, “If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed,” adding, “The fetus has an interest in having a life, and that doesn’t change from the point before viability and after viability.”

When Justice Clarence Thomas asked her to identify the constitutional right at issue — whether to abortion, privacy or autonomy, Rikelman replied, “It’s liberty.”

“It’s the textual protection in the 14th Amendment that the state can’t deny someone liberty without the due process of law,” she said.

“Allowing a state to take control of a woman’s body and force her to undergo the physical demands for risks and life-altering consequences pregnancy is a fundamental deprivation for liberty, and once the court recognizes that liberty interest deserves heightened protection, it does need to draw a workable line of viability that logically balances the interests at stake,” Rikelman added.

Justice Brett Kavanaugh asked if the court’s decisions in Roe and Casey were wrong to begin with, how that would counter the stare decisis principle.

“If we think that the prior precedents are seriously wrong — if that… doesn’t the history of this court’s practice with respect to those cases tells us that the right answer is actually a return to the position of neutrality, and not stick with those precedents in the same way that all those other cases did?”

Jackson Women’s Health and its allies say the high court’s protection of a woman’s right to choose the procedure is clear, well-established and should be respected.

The arguments are being heard by a court with a 6-3 conservative majority widely considered more sympathetic to abortion rights opponents than any in a generation.

Audio of the arguments was streamed live on the court’s website.

Legal scholars say the case is the most significant for abortion rights in 30 years. If the justices uphold the Mississippi law, they would be reversing a key precedent that could clear the way for stringent new restrictions on abortion in roughly half the country.

Majorities of Americans support the Supreme Court upholding Roe v. Wade and oppose states making it harder for abortion clinics to operate, according to an ABC News/Washington Post poll this month. Three in four Americans, including majorities of Republicans, independents and Democrats, say the decision of whether or not to have an abortion should be left to a woman and her doctor.

But Americans appear more sharply divided on the type of ban at issue in Mississippi. A Marquette University Law School poll this month found 37% favored upholding a 15-week ban, with 32% opposed.

Overshadowing the case is the Supreme Court’s still-pending decision in a separate dispute over Texas’ unprecedented six-week abortion ban, SB8, which has been in effect for nearly three months and dominated national headlines.

The justices gave the Texas law a highly expedited hearing, during which a majority appeared skeptical of its enforcement scheme that encourages citizens to sue anyone who aids or abets an unlawful abortion for the chance at a $10,000 bounty. Many observers assumed the court would quickly move to put the law on hold, but it has not done so.

A decision in the Mississippi and Texas cases are expected by the end of the court’s term in June 2022.

The abortion rights battle at the Supreme Court comes as Republican-led states have enacted more than 100 new abortion restrictions so far this year, according to the Guttmacher Institute, a research organization that supports abortion rights.

Twenty-one states have laws in place that would quickly impose abortion bans in the event the Supreme Court overturns Roe.

Fourteen states plus Washington, D.C., have laws explicitly protecting access to abortion care, according to Guttmacher.

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