The Supreme Court seemed open to the possibility of answering Mississippi’s call to scuttle Roe v. Wade, the perpetually controversial 1973 ruling that wrested the regulation of abortion from the states and made abortion lawful throughout the entire country.
Roe v. Wade is “an egregiously wrong decision,” Mississippi Solicitor General Scott Stewart said during oral arguments on Dec. 1.
“Roe v. Wade and Planned Parenthood v. Casey haunt our country,” Stewart said, referencing Roe’s companion ruling from 1992, which held states can’t impose significant restrictions on abortion before a fetus becomes viable for life outside the womb, somewhere around the 24-week gestation mark.
“They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this court recognize a right to end a human life.”
This is the first direct challenge to Roe in the high court since Justice Amy Coney Barrett’s appointment last year nominally gave its conservative wing a 6–3 majority.
Justice Sonia Sotomayor challenged Stewart, saying the legislative sponsors in Mississippi said their bill came about “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? I don’t see how it is possible. ... If people actually believe that it’s all political, how will ... the court survive?
Sotomayor disputed Stewart’s statement that a fetus can feel pain. He said “an unborn life” can be “poked” and then recoil “in the way one of us would recoil.”
Sotomayor said this “is not well founded in science at all.” Only “a small fringe of doctors believe that pain could be experienced ... before a cortex is formed.”
Justice Elena Kagan seemed to accept that the court will discard Roe.
If the fetal-viability standard were abandoned and replaced with an “undue burden” standard, what would that “leave the court with going forward?”
Kagan added, “How do you think ... we would be able to deal with that ... or how would you counsel us to deal with that if the court were to go down that road?”
Abortion clinic attorney Julie Rikelman said, “Mississippi’s ban on abortion two months before viability is flatly unconstitutional.”
“Mississippi asks the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will.”
Erasing or weakening the right to abortion “will propel women backward” and do “profound damage to women’s liberty, equality, and the rule of law,” she said.
“Two generations have now relied on this right, and one out of every four women makes the decision to end a pregnancy.”
Justice Samuel Alito said people on both sides acknowledge that drawing the line at fetal viability “doesn’t make any sense.”
“If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed.”
“Look at this on the other side,” Alito continued.
“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?”
Rikelman disagreed, saying: “What the court says is that those philosophical differences can be resolved.”
Alito responded: “That’s what I’m getting at. What is the philosophical argument, the secular philosophical argument for saying, this is the appropriate line?”
Some say, Alito said, “the rights of personhood” kick in “when the fetus acquires certain independent characteristics, but viability is dependent on medical technology and medical practice. It has changed; it may continue to change.”
Chief Justice John Roberts told Rikelman that Mississippi’s 15-week ban is “not a dramatic departure from viability.”
“When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea. And I don’t think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those [countries] ... share that particular time period.”
U.S. Solicitor General Elizabeth Prelogar said overruling Roe and Casey would be “an unprecedented contraction of individual rights and a stark departure from principles of stare decisis,” referencing a Latin phrase that means standing by the decisions, or following existing legal precedents.
“The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society,” she said.
Justice Clarence Thomas, who frequently criticizes stare decisis, asked Rikelman: “What constitutional right protects the right to abortion? Is it privacy? Is it autonomy?”
Rikelman replied: “It’s the textual protection in the 14th Amendment that a state can’t deprive a person of liberty without due process of law, and the court has interpreted liberty to include the right to make family decisions and the right to physical autonomy, including the right to end a pre-viability pregnancy.
“There was a tradition under the common law for centuries of women being able to end their pregnancies. But, in addition, when it comes to decisions related to family, marriage, and childbearing, the court has done the analysis at a higher level of generality, and that makes sense because, otherwise, the Constitution would reinforce the historical discrimination against women.”
Answering Barrett, Rikelman claimed women endanger themselves by giving birth.
It’s “75 times more dangerous to give birth in Mississippi ... than it is to have a pre-viability abortion, and those risks are disproportionately threatening the lives of women of color.”
By contrast, the state’s petition to the Supreme Court said abortion operations can kill women.
Surgical abortion after 15 weeks “carries inherent medical threats to the mother.” The risk of the mother dying is 35 times more likely at 16 to 20 weeks than at eight weeks, “and the relative risk of mortality increases by 38 percent for each additional week at higher gestations,” the document states.
