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Supreme Court weighs overturning Roe v Wade


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John Burger - published on 12/01/21

Hearing oral arguments in Mississippi abortion case, justices grill attorneys over upsetting precedent.

Whether two major Supreme Court decisions on abortion can or should be overturned was at the center of arguments at the court Wednesday morning. With some arguing that those decisions — Roe v Wade and Planned Parenthood v Casey — were wrongly decided, and others, including some justices, worrying that overturning them would lead to a public perception that the Court is guided primarily by political considerations, it appeared that the chance of doing so is a long shot.

Justices seems to worry what standards they would be left with in ruling on other abortion cases, should they abandon Roe and Casey

The case being argued — Dobbs v Jackson Women’s Health Organization — was brought by the State of Mississippi, whose 2018 law banning abortions after 15 weeks gestation (with exceptions for medical emergency or severe fetal abnormality) has been blocked by lower courts. Dobbs is considered the most significant challenge in recent years to Roe, the 1973 Supreme Court decision that established a constitutional right to abortion. The case garnered so much attention that over 140 friend of the court briefs were filed by supporters of both parties.

Outside the court December 1, hundreds of demonstrators on both sides of the issue chanted slogans and held signs.

The parties in the case were Thomas E. Dobbs, who serves as the state health officer of the Mississippi State Department of Health, and Jackson Women’s Health Organization, the only abortion clinic in that state. 

“Under the Constitution, may a State prohibit elective abortions before viability?” the state’s brief asked. “Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion.”

The state asked the Supreme Court to overturn Roe and Casey. It recognized that under those cases, a state law restricting abortion may not pose an “undue burden” on obtaining an abortion before viability, and before viability, a state may not maintain “a prohibition of abortion,” despite the state’s “important interests” in protecting unborn life and women’s health.

Mississippi’s argument

During Wednesday’s oral arguments, which lasted almost two hours, some justices expressed extreme reluctance to violate the principle of stare decisis, which requires the court to stand by previous decisions and hesitate to overturn precedents. But Mississippi said that there is an “overwhelming” case for overturning Roe and Casey.

“Nowhere else does this court recognize a right to end a human life,” Scott G. Stewart, the solicitor general of Mississippi, said in his opening argument. The courts that struck down Mississippi’s Gestational Age Act argued that it’s unconstitutional to abort a child “when she can just barely survive outside the womb,” he said, “but not a little earlier, when she just needs a little more help. That is the world under Roe and Casey. That is not the world the Constitution promises. The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. … When an issue affects everyone, and the Constitution does not take sides on it, it belongs to the people.” 

In its brief, Mississippi argued that Roe broke from prior cases by invoking a general ‘right of privacy’ unmoored from the Constitution.” The state noted that Casey did not embrace Roe’s reasoning, and that “Casey’s defense of Roe’s result — based on the liberty this Court has afforded to certain ‘personal decisions’ — fails.”

Mississippi further argued that much has changed since Roe and Casey were decided, making the decision irrelevant. “Those cases maintained that an unwanted pregnancy could doom women to “a distressful life and future,” that abortion is a needed complement to contraception, and that viability marked a sensible point for when state interests in unborn life become compelling. 

“Today, adoption is accessible and on a wide scale; women attain both professional success and a rich family life; contraceptives are more available and effective, and scientific advances show that an unborn child has taken on the human form and features months before viability,” it said. “States should be able to act on those developments. But Roe and Casey shackle States to a view of the facts that is decades out of date.”

A “watershed decision”

After his initial presentation Wednesday, Stewart was challenged by Justice Stephen G. Breyer about the wisdom of overturning a “watershed decision” like Roe v Wade. Referring to a key section of the 1992 Casey decision, Breyer said it is important to show that what the court does in overturning a decision is grounded in principle, not due to social or political pressure. To act otherwise would risk subverting the court’s legitimacy as the final arbiter in a nation dedicated to the rule of law. 

Stewart said, however, that Casey was not a good example of letting the court’s decisions stand. “It recast Roe’s reasoning,” he pointed out. “It jettisoned the trimester framework of Roe itself.”

In addition, many people want the ability to decide on the legality and regulation of abortion “returned to them,” he said. “This is a hot, difficult issue for everyone. That’s why it belongs to the people.”

Justice Sonia Sotomayor worried aloud that if Roe and Casey are overturned, there will certainly be challenges to decisions such as Obergefell v. Hodges, which legalized same-sex marriage.

She also asked Stewart what has changed in science to support the view that viability is “not a real line.” Stewart said the problem is that the concept of viability is “not tethered to” anything in the Constitution, tradition or history.

Sotomayor also demanded that Stewart explain how the state can put women’s lives at risk because of a “religious” decision to protect a fetus earlier than viability, when there is no consensus on when human life begins.

Stewart said that a woman’s interest “is there the entire time,” along with that of the unborn child.

Justice Samuel A. Alito Jr. wondered aloud if there are “secular philosophers and bioethicists who take the position that the rights of personhood begin at conception.”

“I believe so,” Stewart said, “I think there’s a wide array of people of all different views and no faith views who would reasonably have that view. It’s not tied to a religious view.”

Controlling women’s bodies

Approaching the bench next was Julie Rikelman, litigation director of the Center for Reproductive Rights, arguing for Jackson Women’s Health Organization. Rikelman said the Mississippi law is “flatly unconstitutional under precedent.” She repeatedly warned that reversing Roe and Casey would allow states to “take control over a woman’s body,” depriving her of a Constitutionally-guaranteed liberty.  

Justice Clarence Thomas asked Rikelman for her opinion on a previous case where a pregnant woman had ingested cocaine and was charged with criminal child neglect. The incident occurred after the point of viability, but Thomas wondered whether Rikelman thinks the state would have an interest in enforcing the law if the crime were committed before the unborn child was viable. 

“The state can certainly regulate to serve its interests in fetal life and women’s health,” Rikelman said. “Those particular laws tend to undermine both of those interests because they would deter women from seeking prenatal care.”

“I am trying to look at the issue of bodily autonomy,” Thomas clarified, “and whether she has a right also to bodily autonomy in the case of ingesting an illegal substance and causing harm to a pre-viability fetus.”

Rikelman conceded that a state can regulate throughout pregnancy, both before and after viability, to preserve fetal life and a woman’s health.

She also warned that if Mississippi prevails in this case, other states will rush to pass earlier abortion bans. She noted that Texas already has been successful in banning abortions at six weeks, based on the detection of a fetal heartbeat. 

Chief Justice John G. Roberts Jr. questioned her on why 15 weeks is too early, noting that “it is the standard that a vast majority of other countries have.” In fact, the United States is quite permissive allowing abortions through the second trimester — and sometimes later — putting the country in the dubious category shared by countries such as the People’s Republic of China and North Korea. Rikelman sought to correct the chief justice, saying that although other countries have 15-week limits, those restrictions are only “nominal” and that in practice, women have access to abortion “right up to viability.” Roberts was unsuccessful in getting her to define “nominal.” 

Justice Alito engaged Rikelman in a discussion of viability as a “principled line,” as she put it. He said that those opposed to abortion believe that a fetus has an interest “in having a life, and that doesn’t change from the point before viability to the point after viability. … What is the secular philosophical argument for saying that is the appropriate line?” He said that some believe believe that a fetus gains the rights of personhood when he acquires “certain independent characteristics.” Viability, on the other hand, depends on medical progress, he said.

Rikelman said the court chose viability as the standard because a baby’s ability to survive outside the womb is “objectively verifiable.”

Biden administration’s support

U.S. Solicitor General Elizabeth B. Prelogar, the third person to stand before the court, warned of the “severe and swift” effects of reversing Roe and Casey. Many states have already enacted bans on abortion using an early cutoff, such as Mississippi’s, and some of them do not include exceptions for things such as rape or incest, she said. It would have “profound effects” on women’s bodies, health and lives in the case of women who are forced to travel hundreds of miles to obtain a legal abortion. The court has never revoked a right that is “so fundamental to so many Americans.” 

At one point during this third segment, Justice Breyer sounded particularly annoyed, responding to an exchange between Prelogar and Justice Brett M. Kavanaugh. Kavanaugh, suggesting that the Justices do not have to be so concerned here about stare decisis, rattled off a long list of cases that the high court had overturned in its history, including Plessy v Ferguson, the racial segregation ruling that was overturned by Brown v Board of Education.

But Breyer, pointing out that Casey lists only two cases that could stand as exceptions to stare decisis, urged his colleagues to “read those 15 pages [of Casey] with care.” 

In answer to Justice Neil M. Gorsuch’s question about whether there is some other “intelligible principle” the court could use in the future if Roe and Casey are overturned, Prelogar said, “I don’t think there could be any line more principled than viability.” 

Kavanaugh challenged her, saying the state insists there is an interest in fetal life. “You can’t accommodate both interests,” he said. “One has to prevail. That’s why it’s so challenging. What does the Constitution say? Why should this Court be the arbiter” when there are conflicts among the states?

Prelogar answered that because abortion is a “fundamental right,” it’s not up to state legislatures to decide whether to honor that right or not.

In a rebuttal, Stewart said that it took 58 years for the Supreme Court to right the wrong of Plessy v Ferguson.

“We’re running on 50 years of Roe, an egregiously wrong decision that has inflicted tremendous damage on our country, and continues to do so and take innumerable human lives, unless and until this court overrules it,” he said.

The country will have to wait to see if it does — most likely by next June. 

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