Supreme Court weighs Mississippi abortion law, future of Roe v. Wade

WASHINGTON — With a crowd of hundreds of activists gathered outside, the Supreme Court heard arguments Wednesday on a Mississippi law restricting abortions that challenges the nearly 50-year precedent set by Roe v. Wade.

The justices signaled that they were aware of the highly-charged political nature of the case. Many of their questions centered on how their decision could impact American society.

Associate Justice Sonia Sotomayor suggested the very legitimacy of the high court was at stake if it overturned its landmark ruling in 1973 that made access to abortions legal. She noted that sponsors of the Mississippi law said they proposed the abortion restrictions because there were 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 said. “I don’t see how it is possible.”

The 2018 Mississippi law bans abortions after 15 weeks of pregnancy. The law is not currently in effect as the state awaits the court’s decision in Dobbs v. Jackson Women’s Health Organization.

Mississippi Solicitor General Scott Stewart argued the precedents set in Roe v. Wade and a later case, Planned Parenthood of Southeastern Pennsylvania v. Casey, should be overturned and that the court should allow states to decide their own laws.

When Roe was decided in 1973, the court established a person’s right to abortion up to the point of viability, which is typically regarded as 24 weeks of pregnancy. In 1992, justices in the Casey case established the “undue burden” standard to determine the validity of state abortion restrictions.

Stewart argued that the “undue burden” test was difficult to apply and said that the justices should, “return the choice to the people.”

“Many people vocally really just wanted to have the matter returned to them so that they could decide it locally, deal with it the way they thought best, and at least have a fighting chance to have their view prevail, which was not given to them under Roe and then, as a result, under Casey,” Stewart said.

That step would not outlaw abortion nationwide, he explained, as many states would still choose to keep abortion legal.

But Julie Rikelman, attorney for the Center for Reproductive Rights, argued that the justices should affirm two lower court rulings that Mississippi’s “Gestational Age Act” at issue is unconstitutional.

“Two generations of women have now relied on this right,” she said. “There is no less need today than 30 years ago or 50 years ago for women to make this decision for themselves.”

Rikelman said the ban would restrict a pregnant person’s liberty and bodily autonomy, which is protected by the 14th Amendment. She also said people rely on the precedents set in Roe and Casey that protect access to abortion.

Rikelman argued overturning the precedents would result in “forced pregnancies” and disproportionately impact women of color and other marginalized communities.

Associate Justice Elena Kagan said those advocating for the Mississippi law needed to show “a strong justification in a case like this beyond the fact that you think the case is wrong.”

“And I guess what strikes me when I look at this case is that you know, not much has changed since Roe and Casey, that people think it’s right or wrong based on the things that they have always thought it was right and wrong for,” Kagan said.

Elizabeth Prelogar, U.S. Solicitor General, arguing on behalf of the Biden administration, said “the real-world effects of overruling Roe and Casey would be severe and swift.”

Associate Justice Samuel Alito asked Prelogar, “Is it your argument that a case can never be overruled simply because it was egregiously wrong?”

“I think that at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument,” Prelogar said. “And Mississippi hasn’t done so in this case.”

The Jackson Women’s Health case comes before a new Supreme Court with a 6-3 conservative majority. The justice’s questions seem to suggest that alterations to current abortion rights are imminent, though whether they will fully overturn precedent remains to be seen.

Associate Justice Stephen Breyer said he was concerned about the public’s perception of the high court as it wrestles with one of the most contentious issues in American life.

Breyer said the functioning of the court as an institution “comes primarily from people believing that we do our job. We use reason. We don’t look to just what’s popular.”

“The problem with a super case like this, the rare case, the watershed case, where people are really opposed on both sides and they really fight each other, is they’re going to be ready to say, ‘no, you’re just political, you’re just politicians,’” Breyer said, “And that’s what kills us as an American institution.”

Associate Justice Brett Kavanaugh listed several cases in which the court went against set precedent, leading to the expansion of rights, such as the overturning of the “separate but equal” segregation standard in schools in Brown v. Board of Education.

Kavanaugh asked Rikelman “if we think that the prior precedents are seriously wrong – 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 other cases didn’t?”

Chief Justice John Roberts, a potential swing vote in the abortion decision, appeared to be looking for a way to preserve the Mississippi statute without overturning Roe.

“…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 choose, and why would 15 weeks be an inappropriate line?” Roberts asked. “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?”

After the arguments ended, Rep. Cori Bush, D-Missouri, joined pro-choice advocates on the court’s steps, warning that the conservative majority of the Supreme Court may deal a blow to reproductive rights.

“Justice is what this building is supposed to represent. Notice I said ‘supposed to represent, but the history of this court has not always lived up to that,” Bush said. “Today, we are here to say there is nothing just about a far-right Supreme Court determined to oppress us.”

J.C. Carpenter, a leader and sidewalk counsel with Christian-based pro-life organization 40 Days For Life, drove from her hometown of Marysville, California, to support the pro-life demonstrators in front of the court.

“I think there is an amazing pro-life turnout,” Carpenter told Capital News Service. “I think the pro-aborts are well outnumbered and I hope that that speaks to what’s going to happen with this case.”

At least 26 states are poised to ban or restrict abortion if the justices uphold the Mississippi law and overturn Roe, according to abortion research and policy organization The Guttmacher Institute.

The court’s ruling is not expected until next year.

By KELLY LIVINGSTON and NATALIE DRUM
Capital News Service