Supreme Court signals willingness to uphold abortion limits in Mississippi case

WASHINGTON — The Supreme Court appeared prepared Wednesday to uphold a Mississippi law that would ban nearly all abortions after 15 weeks of pregnancy, which would represent a dramatic break from 50 years of rulings.

The justices heard 90 minutes of oral arguments in the most direct challenge to Roe v. Wade in nearly three decades over a Mississippi abortion law.

A majority of the court’s conservative justices suggested they were prepared to discard the court’s previous standard that prevented states from banning abortion before the age of fetal viability, which is generally considered to be at about 24 weeks into a pregnancy.

It was unclear after Wednesday’s argument whether the court would take the additional step of explicitly overturning it’s abortion precedents, including Roe v Wade.

The three more liberal justices warned that the court would appear to be a political body if it tossed out abortion rulings that the country has relied on for decades.

“It is particularly important to show that what we do in overturning a case is grounded in principle and not social pressure,” warned Justice Stephen Breyer.

Justice Sonia Sotomayor asked, “Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts? I don’t see how its possible.”

And Justice Elena Kagan said the court must not act in a way that would cause people to think it is “a political institution that will go back and forth, depending on what part of the public yells the loudest or changed to the court’s membership.”

At least four of the court’s conservatives, Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, and Brett Kavanaugh, suggested they were prepared to overturn Roe on the grounds that it was wrongly decided, despite the public’s decades of reliance on it.

“Can’t a decision be overruled because it was wrong when it was decided?” Alito asked.

Kavanaugh listed several past decisions, on segregation and gay marriage, that resulted from the court overruling longstanding precedents.

Chief Justice John Roberts suggested he would be willing to uphold the Mississippi law without overturning Roe, but it was unclear whether any other members of the court would be with him.

The showdown, which centers on whether the Constitution provides a right to seek an abortion, focuses on a 2018 Mississippi law, blocked by lower federal courts, that would ban most abortions after 15 weeks of pregnancy, allowing them only in medical emergencies or cases of severe fetal abnormality.

Those who seek to outlaw abortion entirely or drastically reduce availability have remained hopeful that the conservative-controlled Supreme Court will deliver them a victory decades after suffering a defeat in Roe v. Wade.

Supporters argue that the law is intended to regulate “inhumane procedures” and that a fetus is capable of detecting and responding to pain by that point in a pregnancy. Opponents contend that the Supreme Court has repeatedly ruled that the Constitution protects abortion.

“The Constitution places trust in the people, on hard issue after hard issue, the people make this country where abortion is a hard issue,” said Mississippi Solicitor General Scott Stewart during oral arguments. “It demands the best from all of us, not a judgment by just a few of us.”

Associate Justice Sonia Sotomayor pressed Stewart on the broad implications of the case.

Sotomayor further questioned Stewart on the science behind the viability of a fetus before 23 to 24 weeks, in which, Stewart replied, “The fundamental problem with viability it’s not really something that rests with science so much, it’s viability not tethered to anything in the Constitution in history or tradition it’s a quintessentially legislative line.”

Sotomayor came back to say, “there is not anything in the Constitution the Supreme Court is the last word on what the Constitution means.”

The Mississippi law takes aim at the court’s landmark Roe v. Wade ruling in 1973, as well as the 1992 decision in Planned Parenthood v. Casey. The court has held that states can impose some restrictions on abortion as long as they do not present an “undue burden” and that the procedure cannot be prohibited before fetal viability, generally considered to be 23 to 24 weeks into pregnancy.

The Centers for Disease Control and Prevention estimated last month that among the 47 states that reported abortion data for 2018 and 2019, the number of procedures increased by 1.7 percent. The CDC report estimated that 95 percent of abortions take place by the 15-week mark.

“Mississippi’s ban on abortion, two months before viability, is flatly unconstitutional under decades of precedent,” said Center for Reproductive Rights senior director Julie Rikelman during oral arguments. “Two generations have now relied on this right and one out of every four women makes a decision to end a pregnancy.”

Associate Justice Amy Coney Barrett pressed Rikelman on Safe Haven laws, an incentive for mothers in crisis to safely relinquish their babies to designated locations, and why they wouldn’t cover the concerns women may have when considering an abortion.

Rikelman replied to Barrett that, “we don’t just focus on the burdens of parenting,” instead pregnancy is unique and “in fact has impact on all of their lives and their ability to care for other children, other family members on their ability to work.”

Protesters and supporters of reproductive choice argue at the Abortion Freedom Fighters Rally, in Jackson, Miss., on Oct. 2, 2021.Rory Doyle / Reuters file

The most recent NBC News poll, released in August, found that 54 percent of Americans believe that abortion should be legal in all or most cases. Much of the country appears to be in the middle, with the poll finding that 23 percent of respondents said abortion should be legal “most of the time” and that 34 percent said it should be illegal “with exceptions.”

Pro-abortion protestors were seen outside the Supreme Court on Wednesday dressed in bright teal, with signs reading “liberate abortion” and “abortion is essential,” chanting in support of abortion access.

The rally also attracted lawmakers like Reps. Pramila Jayapal, D-Wash. and Barbara Lee, D-Calif., and Sen. Richard Blumenthal, D-Conn.

“We are here once again to protect abortion and we aren’t going to let anti-choice legislators take away our right,” Lee said. “This is about the freedom to make your own decision over your own body. The right to an abortion isn’t real if only some people can’t access it.”

Lauren Marlowe, 22, a pro-life demonstrator outside the Supreme Court said she is “very excited” by the possibility of Roe v. Wade being reversed or chipped away.

“I want to see abortion abolished and one of the first steps is returning the rights to the states to make those decisions for themselves,” said Marlowe.

The Supreme Court, with its 6-3 conservative majority, has yet to rule on the Texas law known as S.B. 8, which bans abortion after about the sixth week of pregnancy. The justices must decide whether two lawsuits challenging the unique structure of the law, which delegates enforcement to private lawsuits, can proceed.

The issue of whether the Constitution provides a right to seek an abortion is not before the court in the Texas challenges, but it is directly present in the Mississippi case.

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