Justices in the Supreme Court’s six-member conservative majority on Wednesday raised substantial doubts about the jurisprudence behind the 1973 case establishing abortion rights in the United States, Roe v. Wade, during arguments over a Mississippi law banning abortions after 15 weeks’ gestation.
Dobbs v. Jackson Women’s Health Organization, combined with arguments on Nov. 1 over a Texas anti-abortion law, represents the most direct challenge in decades to Roe, which made abortion a national right rather than letting states decide the issue. The rulings, which will be issued by June 2022, have the potential to sway politics substantially, with the underlying issue a motivating one at the ballot box for opponents of abortion and supporters of abortion rights.
Former Mississippi Gov. Phil Bryant, a Republican, signed the abortion restriction into law in March 2018, which effectively banned abortions after 15 weeks of pregnancy. After the case wound its way up through federal courts, Democratic- and Republican-appointed justices appeared to be divided at the Supreme Court on Wednesday over whether the jurisprudence of abortion rights maintained by 15 previous justices should be unwound.
Justice Sonia Sotomayor raised concerns about a political “stench” that could arise if the court overturns Roe.
But Mississippi Solicitor General Scott G. Stewart argued in favor of the law, saying its precedents “haunt our country” and “have no home in our history or traditions.” Attorney Julie Rikelman, who represents the Mississippi abortion provider who sued, said the state’s law would do “profound damage to women’s liberty, equality, and the rule of law.”
Justice Clarence Thomas asked the first question from the bench and pressed Stewart over the difference between a right to abortion and a right to privacy, which was the pivotal ground for the argument in the 1973 Roe case. Thomas also cited the Supreme Court’s 1992 Planned Parenthood v. Casey decision, which upheld the constitutional right to have an abortion that was established in Roe but also upheld some restrictions from an underlying Pennsylvania state law.
“You focus on the right to abortion, but our jurisprudence seems to focus on, in Casey, autonomy, in Roe, privacy. Does it make a difference that we focus on privacy or autonomy or more specifically on abortion?” Thomas asked.
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Stewart agreed the Constitution does protect “aspects of privacy.” But he added, “Concepts of autonomy, of privacy, of bodily integrity to a right is not how we traditionally — this court traditionally does due process analysis.”
Justice Stephen Breyer raised the question of why the court should disregard “stare decisis,” the principle that the highest court should follow its past rulings, and alter the precedent established by Roe.
In response, Stewart said Roe and Casey should be overturned because they are wrong and meet the high standard for overturning a previous case.
Chief Justice John Roberts questioned the lawyer challenging the Mississippi abortion law about why the state’s ban on abortion after 15 weeks doesn’t provide women with ample time to choose whether to terminate a pregnancy.
Roberts and fellow conservative Justices Amy Coney Barrett and Brett Kavanaugh are viewed as pivotal votes by opponents of abortion for a chance to overrule the decades of precedent on abortion law established under Roe.
Rikelman, a lawyer for the Center for Reproductive Rights, told justices that an altered standard would create a slippery slope for future restrictive abortion laws.
“The state has conceded that some women will not be able to obtain an abortion before 15 weeks, and this law will bar them from doing so,” she said. “Without viability, there will be no stopping point. States will rush to ban abortion at virtually any point in pregnancy.”
Department of Justice Solicitor General Elizabeth Prelogar contended with Rikelman’s points against the Mississippi law and argued that “the real-world effects of overruling Roe and Casey would be severe and swift.” Kavanaugh questioned Prelogar on the argument that Roe and Casey meet both the interests of pregnant people and the interests of protecting life.
“You can’t accommodate both interests. You have to pick. That’s the fundamental problem,” Kavanaugh said. “And one interest has to prevail over the other at any given point in time. And that’s why this is so challenging.”
Kavanaugh also raised questions as to why the highest court should be “the arbiter rather than Congress, the state legislatures, state supreme courts, the people,” noting that different states will have different values that may not align with a sweeping verdict.
Barrett, the last of three justices appointed by former President Donald Trump, asked multiple times about giving a baby up for adoption as an alternative to the conflicting interests brought up by Kavanaugh.
“Actually, as I read Roe and Casey, they don’t talk very much about adoption, noting its referenced in passing as ‘out of the obligations of parenthood,'” Barrett said. She also cited that all 50 states have “safe haven” laws allowing women to relinquish parental rights following birth.
“Why don’t the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly,” Barrett added. “There is, without question, an infringement on bodily autonomy, which we have another context like vaccines. However, it doesn’t seem to me to follow that pregnancy, and then parenthood, are all part of the same burden.”
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Prelogar argued that the merit of Roe that society has come to rely on is that women have a decision on whether to terminate a pregnancy rather than surrendering parental rights.
“The viability line makes sense given the protection for liberty because it comes from the woman’s liberty interest in resisting state control of her body,” Prelogar said.
