A conservative majority in the nine-member court indicated on Wednesday that it would allow states to ban abortion very early in pregnancy, possibly overturning a right that has been in place nationwide for nearly 50 years.
With hundreds of protesters outside cheering for and against, the justices led the arguments that could determine the fate of the landmark 1973 court decision Roe v. Wade legalizing abortion throughout the United States and her 1992 ruling in Planned Parenthood v. Casey, which reaffirmed Roe.
The outcome probably won’t be known until next June. But after nearly two hours of wrangling, the six conservative justices, including three appointed by former President Donald Trump, have indicated they support the Mississippi law. At the very least, such a decision would undermine Roe and Casey, who allow states to regulate and not ban abortion until the time of fetal survival, roughly 24 weeks.
There was also significant support among the conservative justices to get rid of Roe and Casey completely. Judge Clarence Thomas is the only member of the court to have publicly called for the two cases to be overturned.
Trump-appointed Justice Brett Kavanaugh asked whether it would be better for the court to withdraw completely from the abortion case and let states make the decision.
“Why should this court be the arbiter instead of Congress, state legislatures, state supreme courts, and the people get to work it out?” Kavanaugh asked. “And there will be different answers in Mississippi and New York, and different answers in Alabama than in California.”
Abortion would soon become illegal or severely restricted in nearly half the states if Roe and Casey were upended, according to the Guttmacher Institute, a research organization that supports abortion rights. Legislatures in many Republican-led states are preparing to act on the Supreme Court’s ruling. On Wednesday, the US Court of Appeals for the Sixth Circuit overturned previous rulings that barred a Tennessee law that included a ban on abortions once a fetal heartbeat was detected – about six weeks – and ordered a retrial in the full court.
Abortion rights advocates say people of color and those with less potential will be disproportionately affected.
The court’s three liberal justices said that reversing Roe and Casey would seriously damage the court’s legitimacy.
“Will this institution escape the stench this creates in the public perception that the constitution and its reading are mere political acts?” asked Judge Sonia Sotomayor.
In unusually strong terms for the Supreme Court’s argument, Justice Stephen Breyer warned his colleagues that “it’s best to be sure” before they abandon applicable abortion decisions.
Public opinion polls show support for maintaining Roe, although some polls have also found support for greater restrictions on abortion.
Among conservatives, Chief Justice John Roberts seemed more interested in a less comprehensive ruling that would support Mississippi law but not expressly overrule Roe and Casey.
“That may be what they’re asking, but the thing we have today is 15 weeks,” Roberts said, referring to Mississippi’s call to overturn broader cases as well as support its own law.
More than 90% of abortions are performed in the first 13 weeks of pregnancy, long before the survival, according to the federal Centers for Disease Control and Prevention.
About 100 patients annually undergo an abortion after 15 weeks at The Jackson Women’s Health Organization, the only abortion clinic in Mississippi. The facility does not offer abortions after 16 weeks.
Even sticking with the 15-week ban would mean rejecting the decades-old viability streak. Abortion rights proponents say that would effectively upend Roe and leave no initial streak when abortion is banned.
Judge Neil Gorsuch, another Trump appointee, noted that the lack of a strict alternative could be reason to overrule Roe and Casey entirely.
“I confirmed that if 15 weeks were approved we would have cases around 12, 10, 8 and 6, and so my question is, is there a line the government thinks it will be tentative or not,” Gorsuch asked. Supports Mississippi Clinic.
“I don’t think there is any line that could be more tentative than feasible,” Prilugar said.
Supporters of both sides in the abortion controversy filled the sidewalk and street in front of the court, their dueling gatherings audible even from inside the building. Opposition banners indicate sentiments such as “her body is her choice” and “God hates the shedding of innocent blood.” The court stepped up security measures, including closing some streets around the building.
Perhaps in recognition of the seriousness of the case before them, the judges took the podium at ten in the morning without any special smiles or jokes they sometimes shared.
The case was taken to a 6-3 conservative court, which was overturned by judges appointed by Trump-Gorsuch, Kavanaugh and Amy Connie Barrett.
A month ago, judges also heard the controversy over a uniquely designed Texas law that successfully circumvented Roe and Casey decisions and banned abortions in the nation’s second largest state after about six weeks of pregnancy. The legal dispute over Texas law revolves around whether it can be challenged in federal court, rather than the right to an abortion.
The court has yet to rule on the Texas law, and judges have refused to postpone it while the case is under legal review.
The Mississippi case raises more important questions regarding abortion rights. State Attorney General Scott Stewart said Roe and Casey were “stalking our country” and had “no basis in the Constitution.”
Compare these decisions with Plessy v. Ferguson, the infamous Supreme Court ruling from 1896 that justified formal segregation before it was overturned by Brown v. Board of Education 58 years later.
“We are running 50 years of Roe’s ruling. It is a flagrantly wrong decision that has done massive damage to our country and will continue to do so and will result in countless lives unless and until the court overturns it,” he said.
The Mississippi clinic argued that these two cases had been properly adjudicated and relied on by women and their partners for nearly half a century, a point also raised by Judge Elena Kagan.
She said abortion decisions were “part of the fabric of a woman’s existence in this country”.
Barrett approached the issue of women’s dependence on abortion provisions from a different point of view. She suggested that so-called sanctuary laws in all 50 states that allow mothers to relinquish parental rights mean that women cannot be forced into motherhood, which could limit employment and other opportunities.
“Why don’t the safe harbor laws care about this problem?” She asked.
Barrett, who has a long record of personal opposition to abortion, admitted that the court still had to deal with the issue of forcing women to remain pregnant against their will.
She described such a pregnancy as “a violation of bodily autonomy, as you know, we have in other contexts, such as vaccinations.”
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