Conservative Supreme Court Justices Signal They Favor Abortion Limits Abortion rights advocates and anti-abortion protesters demonstrate in front of the U.S. Supreme Court in Washington, D.C., on Wednesday. (OLIVIER DOULIERY/AFP via Getty Images)
MARK SHERMAN Wednesday, 01 December 2021 12:25 PM
Members of the Supreme Court’s conservative majority are suggesting they may make sweeping changes to limit abortion rights in the United States.
The high court is hearing arguments Wednesday in which the justices are being asked to overrule the court’s historic 1973 Roe v. Wade decision legalizing abortion and its 1992 ruling in Planned Parenthood v. Casey, which reaffirmed Roe. Under those decisions, states can regulate but not ban abortion up until the point of viability, at roughly 24 weeks.
Chief Justice John Roberts and Justice Samuel Alito were among those who questioned the viability line, with Alito referencing those who have said the line “really doesn’t make any sense.”
The court is hearing a case about a Mississippi ban on abortion after 15 weeks. The state of Mississippi is telling the justices that Roe and Casey should be overturned and its law banning abortion after 15 weeks upheld.
“Why is 15 weeks not enough time?” Roberts asked at one point during the arguments, which stretched over an hour and a half.
Justice Brett Kavanaugh, one of the conservatives, suggested the court should leave the issue of abortion to Congress and the states and “return to the position of neutrality.”
Earlier in the arguments the Supreme Court’s three liberal justices said that reversing Roe and Casey would severely damage the court's legitimacy.
Justice Elena Kagan said the court doesn't easily overturn past decisions. That prevents people from thinking “this court is a political institution” and “will go back and forth depending on changes to the court's membership.”
Justices Sonia Sotomayor and Stephen Breyer also suggested overturning the court's abortion precedents could damage the court.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" Sotomayor asked. She later added: “If people actually believe that it’s all political how will we survive? How will the court survive?”
It's possible the justices just uphold the Mississippi law and says nothing more, but abortion rights supporters say that would still effectively overturn Roe.
Supporters of both sides in the abortion debate filled the sidewalk and street in front of the court, their dueling rallies audible even from inside the building. Some carried signs reading "Her Body Her Choice” and “God Hates the Shedding of Innocent Blood.” The court stepped up security measures, including closing off some streets around the building.
The case comes to a court with a 6-3 conservative majority that has been transformed by three appointees of President Donald Trump, who had pledged to appoint justices he said would oppose abortion rights.
The court had never agreed to hear a case over an abortion ban so early in pregnancy until all three Trump appointees — Justices Kavanaugh, Neil Gorsuch, and Amy Coney Barrett — were on board.
A month ago, the justices also heard arguments over a uniquely designed Texas law that has succeeded in getting around the Roe and Casey decisions and banning abortions in the nation's second-largest state after about six weeks of pregnancy. The dispute over the Texas law revolves around whether the law can be challenged in federal court, rather than the right to an abortion.
Despite its unusually quick consideration of the issue, the court has yet to rule on the Texas law, and the justices have refused to put the law on hold while the matter is under legal review.
The Mississippi case poses questions central to the abortion right. Mississippi argues that viability is an arbitrary standard that doesn’t take sufficient account of the state’s interest in regulating abortion. It also contends that scientific advances have allowed some babies who were born earlier than 24 weeks to survive, though it does not argue that the line is anywhere near 15 weeks.
More than 90% of abortions are performed in the first 13 weeks of pregnancy, well before viability, according to the federal Centers for Disease Control and Prevention.
Only about 100 patients per year get abortions after 15 weeks at the Jackson Women's Health Organization, Mississippi's lone abortion clinic. The facility does not provide abortions after 16 weeks.
But the clinic argues that the court doesn't normally assess constitutional rights based on how few people are affected, and that the justices shouldn't do so in this case.
Joined by the Biden administration, the clinic also says that since Roe, the Supreme Court has consistently held that the “Constitution guarantees 'the right of the woman to choose to have an abortion before viability.'”
Erasing viability as the line between when abortions may and may not be banned would effectively overrule Roe and Casey, even if the justices do not explicitly do that, the clinic says.
Justice Clarence Thomas is the only member of the court who has openly called for Roe and Casey to be overruled. One question is how many of his conservative colleagues are willing to join him.
Among the questions justices ask when they consider jettisoning a previous ruling is not just whether it is wrong, but egregiously so.
That's a formulation Kavanaugh has used in a recent opinion, and Mississippi and many of its allies have devoted considerable space in their court filings to argue that Roe and Casey fit the description of being egregiously wrong.
“The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” Mississippi says.
The clinic responds by arguing that the very same arguments were considered and rejected by the court nearly 30 years ago in Casey. Only the membership of the court has changed since then, the clinic and its allies argue.
In its earlier rulings, the court has rooted the right to abortion in the section of the 14th Amendment that says states cannot “deprive any person of life, liberty, or property, without due process of law.”
Same-sex marriage and other rights, based on the same provision but also not explicitly mentioned in the Constitution, could be threatened if Roe and Casey fall, the administration argues. Mississippi and its supporters dispute that those other decisions would be at risk.
Abortion arguments normally would find people camped out in front of the court for days in the hope of snagging some of the few seats available to the public. But with the courthouse closed because of COVID-19, there will be only a sparse audience of reporters, justices' law clerks and a handful of lawyers inside the courtroom.
A decision is expected by late June, a little more than four months before next year's congressional elections, and could become a campaign season rallying cry.