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Supreme Court sounds ready to let states curb abortion access

Questions from three key justices did not appear to support a central holding of the landmark 1973 decision in Roe v. Wade

Abortion rights activists hold photos of the Supreme Court justices as oral arguments in Dobbs v. Jackson Women's Health Organization are held Wednesday. The case considers the constitutionality of Mississippi's ban on abortion after 15 weeks.
Abortion rights activists hold photos of the Supreme Court justices as oral arguments in Dobbs v. Jackson Women's Health Organization are held Wednesday. The case considers the constitutionality of Mississippi's ban on abortion after 15 weeks. (Bill Clark/CQ Roll Call)

The conservative majority of the Supreme Court sounded ready Wednesday to allow states to curb abortion rights with a decision that would uphold Mississippi’s ban on the procedure after 15 weeks of pregnancy, but the majority remained opaque on whether to completely jettison nearly 50 years of prior law on the divisive issue.

Questions from three key justices during about two hours of oral argument did not appear to support a standard first put in place in the Roe v. Wade decision of 1973, when the court ruled that states could not enact laws to ban abortions before viability.

That put the line at when a fetus could survive outside the womb on its own, at about 24 weeks of pregnancy. But Mississippi is among states that in recent years have passed more restrictive laws with a plan that a Supreme Court with a more conservative majority would overturn Roe.

The court is expected to issue an opinion in the case, the first major test for a decadeslong conservative legal push to wipe out previous abortion decisions, before the end of the term at the end of June. That would come as midterm congressional elections are heating up and Democrats and Republicans are vying for control of both chambers of Congress.

Justice Brett M. Kavanaugh, one of three appointees of former President Donald Trump who shifted the court to a 6-3 conservative majority for the first time in decades, asked why Mississippi would be wrong in its argument that the Supreme Court should wipe out Roe because the justices have “been forced to pick sides on the most contentious social debate in American life.”

Kavanaugh listed landmark Supreme Court decisions on desegregation, LGBT rights and more in which the court overturned previous rulings that it thought were wrong. If the justices had deferred to precedents in those cases, Kavanaugh said, “the country would be a much different place.”

Kavanaugh also asked about Mississippi’s argument that the Constitution is neutral on abortion rights and so the Supreme Court should be “scrupulously neutral” when it comes to balancing the interests of pregnant women and a state’s interest in the life of a fetus.

“Why should this court be the arbiter, rather than Congress, the state legislatures, state Supreme Courts, the people being able to resolve this?” Kavanaugh said. “And there will be different answers in Mississippi and in New York, different answers in Alabama and California, because there are two different interests at stake and the people in those states might value those interests somewhat differently. Why is that not the right answer?”

Solicitor General Elizabeth Prelogar, arguing on behalf of the United States, responded that was not right “because the court correctly recognized that this is a fundamental right of women, and the nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not.”

Without Roe as a precedent, 26 states are expected to ban abortion, and if the court upholds all 15-week abortion bans, a Mississippi woman would have to travel to Illinois or North Carolina for the closest abortion provider, according to the Guttmacher Institute, a left-leaning reproductive health research organization.

Julie Rikelman, who argued on behalf of Mississippi’s only abortion clinic, told the justices that the Constitution provides a guarantee of liberty and the Supreme Court has interpreted that to include decisions about childbearing and marriage.

“Women have an equal right to liberty under the Constitution, your honor, and if they’re not able to make this decision, if states can take control of women’s bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the Constitution,” said Rikelman, the senior director of litigation at the Center for Reproductive Rights.

The three justices on the liberal wing of the court asked questions that warned of the damage to the reputation of the Supreme Court if it overturns a watershed decision such as Roe if the only substantial change was to the makeup of the court — something Mississippi lawmakers pointed to when they passed the 15-week ban.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor said.

But few justices in the middle of the court picked up meaningfully on those reputation concerns. Justice Amy Coney Barrett, another Trump appointee considered by Senate Republicans as anti-abortion, questioned why a court looking at the issue for the first time would find the viability line any more constitutional than any other line.

“As a matter of prudential judgment, it’s not constitutionally required as a matter of first principles because, in fact, we could decide to be more protective and say 27 weeks into the second trimester,” Barrett said.

Chief Justice John G. Roberts Jr. said a 15-week line was the standard that “the vast majority of other countries have” and “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,” Roberts said. “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 share that particular time period.”

Rikelman replied that Roberts was not correct about that because other countries do allow access to abortion after those set times in a pregnancy — and moving the line back to 15 weeks in the United States would be moving it “substantially backwards.”

Abortion rights advocates have warned that a decision that does not overturn Roe explicitly but gets rid of the viability line would be tantamount to overruling Roe because conservative states would rush to put in more and more restrictive laws.

To that point, a Texas law essentially bans abortions after six weeks, and the Supreme Court has allowed it to be in effect for the past three months as advocates fight for a way to challenge it in court because of its unusual structure.

While oral arguments do not necessarily indicate how the Supreme Court will ultimately rule, experts outside the courtroom Wednesday did not hear much for abortion rights advocates to be optimistic about.

Mary Ziegler, a law professor at Florida State University who published a book in 2020 on the legal history of abortion in America, tweeted that before oral arguments, she thought the Supreme Court “was afraid of looking partisan & would want to make it seem as if overruling Roe struck the justices as a hard question.

“I thought that would mean Roe would be gone in 2023 or 2024 rather than this year,” Ziegler wrote. “I now think I was wrong.”

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