‘Is 15 Weeks Not Enough Time?’ What the Justices Said About the Abortion Case
Here’s What the Supreme Court Justices Said About the Mississippi Abortion Case
(Bloomberg) -- The U.S. Supreme Court justices heatedly debated Mississippi’s ban on abortion after 15 weeks of pregnancy in a case that could upend the landmark Roe v. Wade ruling.
The arguments — which lasted 113 minutes — broke down along conservative and liberal lines, with all six conservative justices signaling they are ready to uphold Mississippi’s law.
Read More: Why Abortion Soared to Top of Supreme Court Docket
Here are some of the questions the justices put to Mississippi Solicitor General Scott Stewart, who defended the state’s law, and Julie Rikelman, the Center for Reproductive Rights lawyer who represents Mississippi’s last abortion clinic.
Justice Sonia Sotomayor highlighted the political implications for the Supreme Court’s reputation.
Now the sponsors of this bill, the House bill, in Mississippi, said we're doing it because we have new justices. The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we're doing it because we have new justices on the Supreme Court.
Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?
She continued:
I could name any other set of rights, including the Second Amendment, by the way. There are many political people who believe the Court erred in seeing this as a personal right as -- as opposed to a militia right. If people actually believe that it's all political, how will we survive? How will the Court survive?
Sotomayor also underscored the risks to women who carry unwanted pregnancies to term.
So when does the life of a woman and putting her at risk enter the calculus? Meaning, right now, forcing women who are poor -- and that's 75 percent of the population and much higher percentage of those women in Mississippi who elect abortions before viability -- they are put at a tremendously greater risk of medical complications and ending their life, 14 times greater to give birth to a child full term, than it is to have an abortion before viability.
And now the state is saying to these women, we can choose not only to physically complicate your existence, put you at medical risk, make you poorer by the choice because we believe what?
Chief Justice John Roberts questioned whether the issue at the heart of the argument was a woman’s choice or when a fetus is considered viable.
If you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they've had the fair choice, opportunity to choice, and why would 15 weeks be an inappropriate line?
Because viability, it seems to me, doesn't have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?
Justice Amy Coney Barrett, who was appointed by former President Donald Trump, questioned the premise that women would be forced into motherhood if they cannot terminate a pregnancy. She brought up state “safe haven” laws that allow women to give up their parental rights after giving birth.
So it seems to me, seen in that light, both Roe and Casey emphasize the burdens of parenting, and insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women's access to the workplace and to equal opportunities, it's also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy.
Why don't the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, 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.
And 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 -- why didn't you address the safe haven laws and why don't they matter?
Justice Samuel Alito questioned whether the line of fetal viability makes “any sense.”
Will you agree with me at least on that point, that a woman still has the same interest in terminating her pregnancy after the viability line has been crossed? And then look at the interests on -- on the other side. The -- 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?
Justice Clarence Thomas underscored the fact that the right to abortion doesn’t appear in the Constitution.
I understand we're talking about abortion here, but what is confusing is that we -- if we were talking about the Second Amendment, I know exactly what we're talking about. If we're talking about the Fourth Amendment, I know what we're talking about because it's written. It's there.
What specifically is the right here what we're talking about?
Justice Brett Kavanaugh, another Trump appointee, listed several famous cases in which the Supreme Court had overturned previous decisions, and whether the view that a precedent was wrong was enough to upend it.
If we think that the prior precedents are seriously wrong -- if that -- why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and not stick with those precedents in the same way that all those others didn’t?
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