WASHINGTON – The Supreme Court’s historic abortion arguments are behind them, judges will soon begin work on crafting a ruling that could dramatically limit abortion rights in the United States.
They will meet privately before the end of the week and take a first vote on whether to maintain Mississippi’s ban on abortions after 15 weeks of pregnancy. But it will be months before a decision is rendered.
In nearly two hours of argument Wednesday, the court’s conservative majority indicated it would uphold Mississippi law and allow states to ban abortion much earlier in pregnancy. The court could even overturn national law which has existed for almost 50 years.
With hundreds of protesters outside chanting for and against, judges heard arguments that could decide the fate of the landmark 1973 court ruling Roe v. Wade legalizing abortion in the United States and his 1992 decision in Planned Parenthood v. Casey, who reaffirmed Roe.
The result will probably not be known until next June. But after nearly two hours of argument, the six Tory judges, including three appointed by former President Donald Trump, indicated they would uphold Mississippi law. At the very least, such a move would undermine Roe and Casey, who allow states to regulate but not ban abortion to the point of fetal viability, at around 24 weeks.
There was also substantial support among the Tory judges to get rid of Roe and Casey altogether. Judge Clarence Thomas is the only member of the court to openly request that the two cases be quashed.
Trump-appointed Judge Brett Kavanaugh asked if the court would do better to withdraw from the abortion issue entirely and let states decide.
“Why should this court be the arbiter rather than Congress, state legislatures, state supreme courts, the people being able to resolve this issue?” Kavanaugh asked. “And there will be different answers in Mississippi and New York, different answers in Alabama than in California.”
Abortion would soon become illegal or severely restricted in about half of the states if Roe and Casey were canceled, according to the Guttmacher Institute, a research organization that supports abortion rights. The legislatures of many Republican-led states are prepared to act on the Supreme Court’s ruling. On Wednesday, the United States Court of Appeals for the Sixth Circuit overturned its previous ruling that blocked a Tennessee law that banned abortions once heart activity is detected in an embryo – around six weeks old – and has ordered a new hearing by the whole tribunal. The new restrictive law remains on hold due to an inferior court ruling.
People of color and of modest means would be disproportionately affected, advocates of abortion rights say.
All three of the court’s liberal justices said overturning Roe and Casey would significantly damage the court’s legitimacy.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are only political acts?” asked Judge Sonia Sotomayor.
In unusually strong terms for an argument in a high court, Judge Stephen Breyer warned his colleagues they “better be sure” before dismissing established abortion decisions.
Opinion polls show support for preserving Roe, although some surveys also find support for greater restrictions on abortion.
Among conservatives, Chief Justice John Roberts appeared most interested in a less drastic move that would uphold Mississippi law but not explicitly overturn Roe and Casey.
“Maybe that’s what they’re asking for, but the issue we have before us today is 15 weeks,” said Roberts, alluding to Mississippi’s call to quash the larger cases in addition to enforce their own law.
More than 90% of abortions are performed in the first 13 weeks of pregnancy, well before viability, according to the Federal Centers for Disease Control and Prevention.
About 100 patients per year have an abortion after 15 weeks at the Jackson Women’s Health Organization, Mississippi’s only abortion clinic. The facility does not offer abortions after 16 weeks.
Even maintaining the 15-week ban would mean rejecting the decades-old viability line. Abortion rights supporters say it would effectively overthrow Roe and leave no policy line as to when abortions could be banned.
Judge Neil Gorsuch, another person appointed by Trump, has suggested that the lack of a hard-hitting alternative could be a reason for overturning Roe and Casey entirely.
“You pointed out that if 15 weeks were approved, then we would have cases on 12 and 10 and 8 and 6, and my question therefore is, is there a line in there that the government says is justified? or not, “asked Solicitor General Elizabeth Prelogar, the lawyer for the Biden administration supporting the Mississippi clinic.
“I don’t think there is a line that could be more principled than sustainability,” Prelogar said.
Supporters on both sides in the abortion debate filled the sidewalk and street outside the courthouse, their dueling rallies audible even from inside the building. Opposite signs read such sentiments as “His body, his choice” and “God hates the shedding of innocent blood.” The court reinforced security measures, including closing some streets around the building.
Perhaps in recognition of the seriousness of the matter before them, the judges took the bench at 10 a.m. without any smiles or the private jokes they sometimes share.
The case went to a Conservative 6-3 majority court that was turned over by the judges appointed by Trump – Gorsuch, Kavanaugh and Amy Coney Barrett.
A month ago, judges also heard arguments over a uniquely designed Texas law that successfully circumvented the Roe and Casey decisions and banned abortions in the nation’s second largest state after about six weeks of pregnancy. The legal dispute over Texas law revolves around whether it can be challenged in federal court, rather than over the right to an abortion.
The court has yet to rule on the Texas law, and judges have refused to stay it while the case is under legal review.
The Mississippi case poses more central questions to abortion rights. State Attorney General Scott Stewart said Roe and Casey “haunt our country” and “have no basis in the Constitution.”
He compared these decisions to Plessy v. Ferguson, the infamous 1896 Supreme Court decision that justified official segregation before it was overturned by Brown v. Board of Education 58 years later.
“We are running on 50 years of Roe. It is an extremely bad decision that has inflicted enormous damage on our country and will continue to do so and will take countless lives unless and until this tribunal l ‘cancel,’ he said.
The Mississippi Clinic argued that these two cases were properly disposed of and on which women and their partners have relied for nearly half a century, a point also raised by Judge Elena Kagan.
Abortion decisions are “part of the fabric of women’s existence in this country,” she said.
Barrett approached the issue of women’s dependence on abortion decisions from a different perspective. She suggested that so-called safe haven laws in all 50 states that allow mothers to give up parental rights mean that women cannot be forced into mothers, which could limit employment and other opportunities.
“Why aren’t the shelter laws addressing this problem?” ” she asked.
Barrett, with a long history of personal opposition to abortion, acknowledged that the court has yet to deal with the issue of forcing women to remain pregnant against their will.
She described such a pregnancy as “an impairment of bodily autonomy, you know, that we have in other settings, like vaccines.”
Associated Press writer Parker Purifoy contributed to this report.
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