As lawyers on both sides pointed out, even if the justices nominally leave Roe vs. Wade in place, a ruling for Mississippi would functionally gut the half-century-old precedent’s holding that states can’t ban abortion early in pregnancy and spur a wave of sweeping state-level restrictions across the country, with many states likely to ban abortion far earlier than 15 weeks.
Justices Brett Kavanaugh and Amy Coney Barrett, the other potential swing justices in this case, were even less sympathetic to arguments against Mississippi’s law. Barrett repeatedly suggested that the option of giving a baby up for adoption obviated the need for abortion, while Kavanaugh cast overturning of Roe and allowing states to enact bans as they see fit as courts “returning to neutrality” on the question of abortion rights.
Meanwhile, the court’s minority of progressive justices attempted to use Wednesday’s arguments to highlight the stakes both for millions of people who could lose access to the procedure nationwide after nearly 50 years of precedent and for the reputation of the court itself.
“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,” said Justice Sonia Sotomayor, an appointee of President Barack Obama. “If people actually believe that it’s all political, how will we survive? How will the court survive?”
Yet many conservative justices seemed to embrace the idea of returning the issue of abortion to the political process and allowing a patchwork of laws which would make abortions freely available in some parts of the country and nearly impossible to obtain elsewhere.
For his part, Kavanaugh seemed downright cold to one of the key arguments put forward by abortion rights advocates: that upending a half-century of law on the issue would undermine the court’s authority and unfairly impact those who’ve come to expect access to legal abortion.
Kavanaugh, who sought compromise on abortion-related issues as an appeals court judge, read a long list of decisions the Supreme Court made which repudiated earlier ones. Many of the reversals had profound consequences, outlawing racial segregation in public schools, upholding the government’s right to implement a minimum wage and guaranteeing criminal suspects the right to an attorney, he noted.
“Those are some of the most important in the court’s history and the court overruled precedent,” said Kavanaugh. The current arguments of abortion rights advocates not to disturb precedent would have profoundly changed the course of American history if the justices had followed them then, the Donald Trump appointee said.
“If the court had done that in those cases, the country would be a much different place,” Kavanaugh added.
As the justices openly wrestled with how their decision in this case would be perceived by a public deeply divided over the abortion issue, no justice or lawyer Wednesday had a clear answer on what might be the biggest question now before the court: what standard they should adopt if they decide to get rid of the bright line of fetal viability.
Mississippi Solicitor General Scott Stewart, when asked this directly, said the “undue burden” standard of Planned Parenthood v. Casey should be applied to abortion bans earlier in pregnancy, though he admitted that what constitutes an “undue burden” is unsettled. He also stressed repeatedly that simply upholding the state’s law wouldn’t be enough, and that overturning the court’s longstanding precedents guaranteeing the right to an abortion is necessary.
“They poison the law. They’ve choked off compromise,” Stewart said of Roe and Casey. “Nowhere else does this court recognize the right to end a human life.”
As lawyers for the Center for Reproductive Rights and the Justice Department warned that states won’t stop at 15-week bans and will seek to ban the procedure entirely, Justices Justice Clarence Thomas and Samuel Alito expressed openness to going beyond overturning Roe, repeatedly asking questions about the rights of fetuses.
Barrett, who was widely regarded as hostile to abortion when she was nominated but has displayed a moderate streak on some issues since taking the high court bench, twice raised the notion that easy availability of adoption eases the burdens of pregnancy and could be grounds to give states more authority to restrict abortions.
“Why don’t the safe haven laws take care of that problem?” asked Barrett, who adopted two of her seven children.
Barrett also made a passing reference to the ongoing controversy over mandated vaccines for the coronavirus. The Trump appointee appeared to suggest that liberals were guilty of hypocrisy for embracing government power to force immunizations on people, while rejecting the idea that anyone be forced to carry a pregnancy to term.
“It’s an infringement on bodily autonomy, which we have in other contexts like vaccines,” Barrett said.
Groups on the left and right are already bracing for a decision that would gut or overturn Roe v. Wade. Abortion rights activists are making plans to help people in the half of the country expected to ban the procedure to cross state lines or obtain abortion pills, while anti-abortion groups are drafting model state and federal legislation to enact new bans and spending big on lobbying for them.
With a ruling expected next summer, just before the 2022 midterms, both sides of the abortion wars are also working to drive home the issue for voters. With control of the House and Senate and a swath of state legislatures up for grabs, the outcome could well determine whether and where the procedure is accessible going forward.
The Roe v. Wade decision, handed down in 1973, set out the basic framework that has governed abortion rights in the U.S. for nearly half a century. Under the landmark ruling, states could not ban abortion before the point of fetal viability, then around 28 weeks and now sometimes 22 weeks or earlier.
The 7-2 decision from Justice Harry Blackmun, an appointee of President Richard Nixon, also laid out a trimester approach for abortion regulation. Few restrictions on abortion are permitted in the first trimester, while states have relatively free rein to ban the procedure in the last trimester, with exceptions for pregnancies that pose a risk to a woman’s life or health. In the second trimester, some state restrictions were permitted but not outright bans.
The high court backed away from the trimester framework in a 1992 case, Planned Parenthood v. Casey, but retained the basic principle that abortion could not be banned before a fetus was viable outside the womb. The majority opinion, authored by Justice Sandra Day O’Connor — an appointee of President Ronald Reagan — held that state regulations could not place an “undue burden” on the ability to obtain an abortion.
The Mississippi case argued Wednesday was slated to be the centerpiece of the court’s abortion docket this term when the justices announced last May that they were taking up the 15-week ban.
However, last summer, the high court became enmeshed in another high-profile abortion fight over a Texas law that bans abortions at an even earlier stage of pregnancy — after about six weeks — and is enforced through private lawsuits.
The justices voted, 5-4, to deny a last-minute plea to block that unusual statute from going into effect on Sept. 1. In that ruling, Roberts joined the court’s three Democrat-appointed justices in dissent, arguing that the court was erring by allowing the measure to take effect.
Following that rebuff, Texas abortion providers asked the high court to hold expedited arguments on the statute. The justices agreed, leading to an argument session a month ago where the main topic was the law’s unusual private enforcement mechanism rather than the strict abortion ban underlying the statute.
During those arguments, some conservative justices expressed concerns that the Texas law could lead states to pass similar intrusions on other constitutional rights, like gun rights.
The justices have not yet issued a ruling on the Texas law, effectively banning most abortions in the state for the last three months.