Lawrence Hurley and Andrew Chung
December 1, 2021
WASHINGTON (Reuters) – Conservative U.S. Supreme Court justices on Wednesday indicated support for upholding a restrictive Mississippi abortion law in a ruling that would undermine or outright overturn the landmark 1973 Roe v. Wade ruling legalizing the procedure nationwide.
The court, which has a 6-3 conservative majority, heard about two hours of oral arguments in the southern state’s appeal to revive its ban on abortion starting at 15 weeks of pregnancy, a Republican-backed law blocked by lower courts. During the arguments, the three liberal justices sternly warned against ditching important and longstanding legal precedents like Roe.
Jackson Women’s Health Organization, the only abortion clinic in Mississippi, challenged the law and has the support of Democratic President Joe Biden’s administration. A ruling is expected by the end of next June.
Roe v. Wade recognized that the right to personal privacy under the U.S. Constitution protects a woman’s ability to terminate her pregnancy. The Supreme Court in a 1992 ruling called Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed abortion rights and prohibited laws imposing an “undue burden” on abortion access. Mississippi has asked the Supreme Court to overturn the Roe and Casey rulings.
“Why is 15 weeks not enough time” for a woman to decide to have an abortion, conservative Chief Justice John Roberts asked.
While Roberts seemed to indicate the court could uphold Mississippi’s law without overturning Roe, other conservative justices including Justice Neil Gorsuch appeared to be interested in going further.
“The Constitution is neither pro-life nor pro-choice … and leaves the issue to the people to resolve in the democratic process,” conservative Justice Brett Kavanaugh said.
Kavanaugh wondered if the court should be neutral on abortion rights, which would require overturning Roe. If Mississippi wins, Kavanaugh added, such a ruling would not prohibit abortion nationwide but would let states regulate it as they see fit.
Julie Rikelman, the lawyer arguing for the abortion clinic, said overturning Roe would not mean the court is neutral as it would be saying that even though the Constitution’s protects liberty, women “would never have equal status under the Constitution.”
Kavanaugh and Justice Amy Coney Barrett, both appointees of Republican former President Donald Trump, could be key votes in determining how far the court will go in upending Roe. Barrett said there are certain instances in which overturning a major precedent is justified but wondered whether “public reaction” is a factor the justices should take into account in doing so.
Mississippi’s is one of a series of restrictive abortion laws passed in Republican-governed states in recent years. The Supreme Court on Nov. 1 heard arguments over a Texas law banning abortion at around six weeks of pregnancy but has not yet issued a ruling.
Anti-abortion advocates believe they are closer than ever to overturning Roe, a longstanding goal for Christian conservatives.
Liberal Justice Sonia Sotomayor said Mississippi brought its new challenge purely because of changes on a Supreme Court that has moved rightward.
“Will this institution survive the stench this creates?” Sotomayor asked, saying it would give the impression that the Constitution and its interpretation “is all political.”
Conservative justices downplayed the idea that the court must be careful in overturning its own precedents, noting that it has done so in many notable contexts including overturning a notorious 1895 ruling that allowed racial segregation.
“There are circumstances in which a decision … must be overruled simply because it was egregiously wrong at the moment it was decided,” conservative Justice Samuel Alito said.
Roberts expressed some skepticism about overturning precedents, noting that “it’s going to be a long list” of past rulings that the justices currently might think were incorrectly decided.
Liberal Justice Elena Kagan cited the importance of the court adhering to precedent “to prevent people from thinking this court is a political institution that will go back and forth depending on what part of the public yells the loudest and preventing the people from thinking the court will go back and forth based on the court’s membership.”
The justices differed on whether overturning Roe would cast into doubt other notable precedents including those advancing LGBT rights.
Scott Stewart, arguing for Mississippi, said the Roe and Casey rulings “haunt our country.”
“They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise,” Stewart said.
The Roe and Casey decisions determined that states cannot ban abortion before a fetus is viable outside the womb, generally viewed by doctors as between 24 and 28 weeks.
A 15-week ban is not a “dramatic departure from viability,” Roberts said.
Mississippi’s 15-week ban directly challenged the viability finding. In the 1992 Casey ruling, the court said Roe’s “central holding” was that viability was the earliest point at which states could ban abortion.
Mississippi is among 12 states with so-called trigger laws designed to ban abortion if Roe v. Wade is overturned. Additional states likely would rapidly curtail abortion access.
Hundreds of protesters from both sides of the abortion debate rallied outside the court ahead of the arguments.
If Roe were overturned or limited, large swathes of America could return to an era in which women who want to end a pregnancy face the choice of undergoing a potentially dangerous illegal abortion, traveling long distances to a state where the procedure remains legal and available or buying abortion pills online. The procedure would remain legal in liberal-leaning states, with 15 having laws protecting abortion rights.