Roe hanging by a thread after justices hear Mississippi abortion case

WASHINGTON (CN) — During oral arguments Wednesday in a landmark case on abortion, the Supreme Court's conservative majority seemed poised to uphold a 15-week ban on abortions in Mississippi while remaining opaque on if they will completely overturn a woman’s right to abortion.

“If it really is an issue about choice, why is 15 weeks not enough time,” Chief Justice Roberts asked. 

Fellow conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh seemed to lean toward the possibility of overturning the court’s nearly 50-year precedent in Roe v. Wade and almost 30-year precedent of Planned Parenthood v. Casey. 

“There are circumstances in which a decision may be overruled … simply because it was egregiously wrong at the moment it was decided,” Alito said. 

“The Constitution is neither pro-life nor pro-choice on the question of abortion,” Kavanaugh said. 

The Trump appointee argued that, even if the court were to overturn Roe, it wouldn’t be banning abortion in all states. 

“If you were to prevail, the majority of states still could, or and presumably would, continue to freely allow abortion,” Kavanaugh said. 

Roberts looked for a narrow ruling that wouldn’t completely overturn Roe while upholding the 15-week ban. His questions pushed hard on the reliance of the viability line — the precedent stemming from Casey that established a right to abortion until the fetus could survive outside the womb, a threshold that is usually reached at 23 of 24 weeks in utero.

“As far as viability goes, I don't see what that has to do with the question of choice at all,” Roberts said. 

Alito took a stronger stance on the viability line. 

“The fetus has an interest in having a life and that doesn’t change, does it, from the point before viability to the point after viability,” the Bush appointee said. 

Justice Amy Coney Barrett offered an analogy to personal choice that has crept into conservative circles during the Covid-19 pandemic, saying the option of adoption lessens the burden on women who become pregnant but do not want to keep the child. The justice herself is a mother of seven, with two of the children adopted from Haiti.

“There is without question an infringement on bodily autonomy — which we have in other contexts like vaccines — however, it doesn't seem to me to follow that pregnancy and then parenthood are all part of the same burden,” the Trump appointee said. “So, it seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion. Why didn't you address the safe-haven laws, and why don't they matter?” 

The arguments stretched nearly two hours as the justices weighed Mississippi’s Gestational Age Act — which has been shot down in every other step in the legal battle leading up to Wednesday's closely watched proceedings — and the court’s own precedents in Roe and Casey. Mississippi has explicitly asked the court to overturn these precedents to uphold its law. 

“Roe and Casey have failed, but the people, if given the chance, will succeed,” said Mississippi Solicitor General Scott Stewart. “This court should overrule Roe and Casey and uphold the state's law.” 

Stewart said Roe and Casey “haunt our country” and “poison the law,” while having no basis in the constitution. He referred to fetuses as “unborn girls” and said states should have the right to regulate abortions. 

“Abortion is a hard issue,” Stewart said. “It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the constitution does not take sides on it, it belongs to the people.” 

Jackson Women’s Health — the last abortion provider in Mississippi — launched its challenge to the 15-week ban the day it was signed into law in 2018. Julie Rikelman, senior director of litigation at the Center for Reproductive Rights and counsel representing Jackson in the case, called the law unconstitutional and said it would propel women backward. 

“For a state to take control of a woman's body and demand that she goes through pregnancy and childbirth, with all the physical risks and life altering consequences that brings, is a fundamental deprivation of her liberty,” Rikelman said. “Preserving a woman's right to make this decision until viability protects her liberty while logically balancing the other interests at stake.” 

The United States also argued for the abortion providers, telling the court that overturning Roe and Casey would mark an unprecedented setback in the court’s history. 

“The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society,” Solicitor General Elizabeth Prelogar said. “The court should not overrule the central component of women's liberty.” 

The liberal justices on the court focused on how upholding Mississippi’s law would violate stare decisis — the doctrine that obligates courts to look to precedent when making decisions. 

Justice Stephen Breyer read from the court’s Casey opinion and its high standard for overturning prior cases. 

“There are two sentences I'd like to read because they say, they really mean this, ‘to overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the court’s legitimacy beyond any serious question,’” the Clinton appointee said.  

Justice Sonia Sotomayor said she did not see how the court could survive the public perception that they were acting on political whims. 

“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts,” the Obama appointee said. “I don't see how it is possible. It's what Casey talked about when it talked about watershed decisions.” 

Sotomayor fought back against claims that abortion is not a right because it is not in the text of the constitution by saying the constitution also doesn’t give the Supreme Court the power it gained in Marbury v. Madison. 

“There is not anything in the constitution that says that the court — the Supreme Court — is the last word on what the constitution means,” Sotomayor said. 

Crowds of protesters for and against abortion — along with some members of Congress — gathered in front of the court while arguments continued inside. Mississippi Attorney General Lynn Fitch was among the speakers at the rallies. 

“Abortion policy has been frozen in 1973,” Fitch said. “It is time our laws caught up. It is time for the unelected judges of this court to release abortion policymaking to the people, to allow our elected leaders to speak the people’s will … or be held accountable at the ballot box. We know these are hard choices. We know there are no easy answers. But the constitution gives the job to us, to the people. And we are ready to do that job.”

Follow @KelseyReichmann

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