Abortion Fireworks Flare as Justices Question Dumping Precedents

(Bloomberg) -- The U.S. Supreme Court engaged in fiery arguments in tackling its most important abortion case in a generation Wednesday, weighing Mississippi’s ban on the procedure after 15 weeks of pregnancy in a case that could gut the landmark Roe v. Wade ruling.

Justice Clarence Thomas immediately asked the state how the court might uphold the law without overturning the court’s precedents on abortion -- Roe and a second case, Planned Parenthood v. Casey, that said states can’t impose an “undue burden” on abortion access until fetal viability. It was a position echoed by other conservative jurists, who hold a 6-3 majority on the court.

“If we don’t overrule Casey or Roe,” Thomas asked, “do you have a standard that you propose other than the viability standard?” 

Mississippi Solicitor General Scott Stewart responded that he would propose a “clarified version of the undue burden standard untethered from any bright line viability rule.”

Even if the court doesn’t explicitly overturn Roe, the 1973 ruling that legalized abortion nationwide, a decision upholding Mississippi’s law would have a far-reaching impact. It would give states new license to curb abortion access, guaranteeing tighter restrictions in much of the country.

Liberal justices pressed Stewart on the impact of overturning precedents on the court’s reputation and standing. 

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked. 

The comments came early in the argument, which could last as long as two hours. The case centers on a law that is far more stringent than anything the court has previously upheld and all but impossible to square with Roe and other abortion precedents.

“If the court were to move the line substantially backwards, and 15 weeks is nine weeks before viability, it’s quite a bit backwards,” said Julie Rikelman, the Center for Reproductive Rights lawyer who represents Mississippi’s lone abortion clinic, the Jackson Women’s Health Organization.

Chief Justice John Roberts responded that 15 weeks was “not a dramatic departure from viability, it is the standard that the vast majority of other countries have.”

With a conservative majority on the court, abortion opponents have a chance to achieve their long-sought goal of overturning Roe and putting the issue back under state control. But the issue is divisive in the U.S., even though public opinion polls show that a majority of Americans support abortion rights.

Before the argument began, hundreds of demonstrators on both sides of the issue gathered on the sidewalk and street in front of the court. Signs held by abortion rights supporters read “Abortion is health care” and “Grow abortion power.” Abortion opponents carried placards that said “Abortion is wrong” and “Life is a human right.” 

Mississippi contends that Roe and Casey ruling are “egregiously wrong” decisions that have proven unworkable and only inflamed the abortion debate.

The 7-2 Roe decision said abortion protections were covered by the “right to privacy,” a doctrine the court established in earlier cases, though the Constitution doesn’t expressly use those words. The court re-affirmed Roe in Casey, while modifying the legal test. Casey said states can’t impose an “undue burden” on abortion access until fetal viability, a point the court suggested was around 23 or 24 weeks at the time. 

Barrett and Kavanaugh

Reproductive-rights advocates say women have come to depend on availability of legal abortion, contending that access is critical for their ability to participate equally in society.

“Nothing in the years since Casey was decided has rendered individuals’ rights to make basic decisions about their bodies and their lives any less worthy of constitutional protection,” said Julie Rikelman, the Center for Reproductive Rights lawyer who will represent Mississippi’s lone abortion clinic, the Jackson Women’s Health Organization.

U.S. Solicitor General Elizabeth Prelogar, the Biden administration’s top Supreme Court lawyer, will argue alongside Rikelman against the law.

The outcome is likely to hinge on the two newest justices, Donald Trump appointees Brett Kavanaugh and Amy Coney Barrett. Each has a record of support for abortion restrictions, though not necessarily for overturning Roe.

The court is separately deliberating over a Texas ban that applies at about six weeks. The Texas cases don’t directly address Roe and Casey, instead centering on the state’s effort to insulate the law from judicial scrutiny.

Overruling Roe

A decision that upheld the Mississippi law without overturning Roe would invite a stream of follow-up cases over bans that apply earlier in pregnancy. More than 20 states have laws banning at least some pre-viability abortions -- many of them currently being litigated in lower court. 

Should the court explicitly overrule Roe, a dozen states -- including Mississippi -- have laws designed to automatically take effect and outlaw almost all abortions.

The case is Dobbs v. Jackson Women’s Health Organization, 19-1392.

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