Roe v. Wade In Serious Peril After Dramatic Supreme Court Arguments

Justice Sonia Sotomayor warned that the Supreme Court won't survive the "stench" of partisanship in the Mississippi abortion case.

The U.S. Supreme Court heard oral arguments on Wednesday in a case that threatens to overturn the constitutional right to access safe and legal abortion across the country. The immediate and overall consensus after the arguments came to a close in Dobbs v. Jackson Women’s Health Organization: Roe v. Wade is in serious danger.

The conservative majority on the Supreme Court appeared largely supportive of a 2018 Mississippi law that seeks to ban abortion after 15 weeks of pregnancy. The law directly contradicts Roe v. Wade, the 1973 Supreme Court decision that protects a person’s right to abortion. The decision made it a constitutional right to access safe and legal abortion until a fetus’s viability, which is around 24 weeks. Mississippi’s 15-week restriction is attempting to cut that almost in half.

Conservative justices Clarence Thomas, Samuel Alito and Neil Gorsuch openly suggested that the current viability line under Roe is arbitrary and can be moved, which would effectively overturn the high court precedent. Chief Justice John Roberts along with the two newest members of the court, Justices Brett Kavanaugh and Amy Coney Barrett, were less vocal. All three, however, seemed to be open to tinkering with the gestational limits on abortion, which would also effectively overturn Roe as it stands now.

Although they were in the minority, justices Sonia Sotomayor, Stephen Breyer and Elena Kagan were vehement in their support for abortion as a constitutional right. All three continually pushed back against the argument made by Mississippi Solicitor General Scott Stewart that Roe is not settled law. Each reiterated the far-reaching implications for women and birthing people if the decision were to be overturned.

Sotomayor had, by far, the most scathing questions about Stewart’s argument that moving the viability line from 24 weeks to 15 weeks would have zero impact on women across the country. She pointed out that the simple fact the court was hearing these arguments in Mississippi’s attempt to ban abortion after 15 weeks would tarnish the nonpartisan reputation the Supreme Court has worked to uphold for hundreds of years.

“There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body has been clearly set since Casey and never challenged,” Sotomayor said of the 1992 Supreme Court ruling in Planned Parenthood v. Casey, which ruled states were legally allowed to restrict abortion access as long as it did not impose “an undue burden” on patients.

“You want us to reject that line of viability and adopt something different. Fifteen justices over 30 years, since Casey, have reaffirmed that basic viability line. Four have said no, two of them members of this court, but 15 justices have said yes, of varying political backgrounds,” she continued. “Now, the sponsors of this bill, the House bill in Mississippi, said, ‘We’re doing it because we have new justices.’ ... Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”

The Supreme Court could strike down the Mississippi law, which would mean Roe remains the law of the land. Or the court could uphold the law, which would effectively overturn Roe and allow states to set their own standards ― even perhaps allowing them to ban it outright. If that happens, it would trigger bans or constitutional amendments in several states that would immediately outlaw abortion.

The Supreme Court isn’t expected to decide the Mississippi case until spring 2022.

The case centers on the Jackson Women’s Health Organization because it’s the last abortion clinic in Mississippi. It’s been open since 1995 and provides care to around 3,000 patients a year. The majority of the clinic’s patients are Black women, poor women and teenagers.

Although Mississippi currently allows abortions up to 20 weeks, JWHO only has the resources to provide abortions up to 16 weeks. Anything beyond that requires a dilation and evacuation procedure, known as D&E, which brings more costs and paperwork that the clinic simply doesn’t have the resources for.

Shannon Brewer, JWHO’s director, told reporters last month that the 15-week limit would have severe consequences for the clinic’s patients. JWHO sees about 15 to 20 people a month who are 15 weeks pregnant or more. Additionally, any other clinic that would open in Mississippi in the future would lose a five-week window to perform the procedure.

Political partisanship and the legitimacy of the high court was a main theme discussed by a few justices, including Breyer and Kavanaugh. The topic came up again and again with respect to the legal term “stare decisis,” which refers to whether the court should respect its own precedent. In this case, the justices discussed whether pre-viability bans on abortion are unconstitutional and states should be free to regulate abortion prior to 24 weeks of pregnancy.

“This has huge implications for the legitimacy and existence of the Supreme Court in its ability to adjudicate cases and make these constitutional claims,” said Grace Howard, an assistant professor of justice studies at San Jose State University who is writing a book titled “The Pregnancy Police: Conceiving Crime, Arresting Personhood.”

“If the court gets rid of Roe ― gets rid of that viability standard that we’ve been following for so long ― it very much looks like the court is a political body,” added Howard. “The legitimacy of the court is based on the idea that they will be objective interpreters of the Constitution. So if having more conservative court members is the thing that can undo it, it’s clear that it’s a political body, and that’s not good for the Supreme Court.”

When Kavanaugh brought up the appearance of bias on the court, it was under a very different pretense. The justice, who was appointed in 2018, suggested that overturning Roe and Casey would be a “return to the position of neutrality” on abortion, which Stewart, the attorney for Mississippi, agreed with.

Although some believe Kavanaugh may be the deciding vote on this case, Howard believes it will be Barrett. While Barrett was less outspoken during the arguments, one of her comments made it fairly obvious where she stands. Barrett brought up safe-haven laws, which allow a parent to relinquish a child anonymously within the first 24 to 48 hours after giving birth. This suggests that the new justice believes adoption is a fair alternative to abortion and limiting abortion at 15 weeks would not be an undue burden to birthing people ― a direct violation of Roe and Casey.

Advocates of abortion rights have routinely debunked adoption as a substitute for abortion because it ignores the health impacts of pregnancy and birth. In Mississippi, it’s currently 75 times more deadly to carry a pregnancy to term than to get an abortion due to the abysmal maternal mortality rates in the state.

Stewart concluded his arguments on Wednesday by comparing the decision in Roe to the “egregiously wrong” Supreme Court decision in Plessy v. Ferguson, an 1896 ruling that upheld race-based segregation. The ruling wasn’t overturned until 1954 in the landmark high court decision Brown v. Board of Education.

“I resent the comparison between the right to terminate a pregnancy versus mass oppression against an entire group of people based on race,” said Howard. “But also, we’re talking about the directional approach of trying to limit people’s rights or take them away. In so many of these big watershed cases, we have been trying to expand rights. We’re willing to overturn these past precedents because they limited people’s rights. This would be a big watershed case where we are taking away what was once considered a fundamental right for roughly 50% of the population.”

Ahead of the oral arguments, both pro-abortion and anti-abortion rights advocates rallied in front of the steps of the high court. Several members of Congress, including Rep. Pramila Jayapal (D-Wash.) and Sen. Richard Blumenthal (D-Conn.), spoke in favor of abortion rights.

“I am also one of the one in four women in America who have had an abortion. For me, terminating my pregnancy was not an easy choice but it was my choice,” Jayapal told a crowd of supporters.

Rep. Barbara Lee (D-Calif.), co-chair of the Congressional Pro-Choice Caucus, also spoke at the rally. “This issue is about racial equity, equality and justice. This is about the freedom to make your own decisions over your own body. That’s what this is about,” she said. “So, make no mistake, the right to abortion is not real if only some people can access it.”

As Democratic lawmakers took the stage to speak at the rally, anti-abortion protesters could be heard in the background yelling, “We will overturn Roe!”

Some lawmakers in support of abortion rights were later arrested at the rally as the oral arguments began inside the court.

Julie Rikelman, an attorney at the Center for Reproductive Rights who argued the case before the justices, was confident that she and U.S. Solicitor General Elizabeth Prelogar made a strong case.

“We really were able to put all of the key issues in front of the court and those key issues are, of course, 50 years of precedent that support this right and the fact that Mississippi has not made any argument for taking this right away 50 years later, and especially hasn’t made any argument that the court hasn’t already considered and rejected before in the other times it was asked to take this right away,” said Rikelman.

“We also just focused on how important this right is for women and their families. Both for their autonomy, their ability to control their bodies and their lives but also for their equal status in society. I think we were able to powerfully present those arguments, and right now it’s in the court’s hands.”

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