A case that many feel strikes at the heart of Roe v. Wade went before the U.S. Supreme Court Wednesday morning.
Dobbs v. Jackson Women’s Health Organization concerns a law that the Republican majority of the Mississippi Legislature enacted in 2018. It bans abortions “if the probable gestational age of the unborn human” is determined to be more than 15 weeks.
Justices heard two hours of oral arguments. The question is whether the court, which is expected to give its decision in June, would uphold the 15 weeks, which is short of the fetal viability of about 23 weeks; overturn Roe v. Wade entirely, which leaves the issue in the hands of states; or declare the Mississippi law as unconstitutional in the face of Roe v. Wade.
Chief Justice John G. Roberts Jr., who’s part of the court’s conservative majority but has sided with the liberals on some issues, suggested the court didn’t need to determine the entire fate of Roe v. Wade and could limit the scope of its decision to the question of 15 weeks vs. 23 weeks.
“What we have before us is a 15-week standard,” Justice Roberts told Julie Rikelman, who was arguing on behalf of Jackson Women’s Health Organization, the last abortion clinic in Mississippi. Ms. Rikelman is an attorney and the senior director at the Center for Reproductive Rights.
Various national media reporters observing the oral arguments said their impression is that the 6-3 conservative majority, in its questions of the lawyers representing the two sides, is suggesting the court may weaken Roe v. Wade or overturn it entirely.
Justice Brett Kavanaugh, one of former President Donald Trump’s conservative appointments, asked Mississippi Solicitor General Scott Stewart whether he was arguing that the Constitution is neither pro-life nor pro-choice but leaves the issue to be decided by states or maybe Congress.
But Justice Sonia Sotomayor, one of the court’s three liberal justices, cautioned that people would question the court’s legitimacy if Roe v. Wade is overturned. She asked whether the court could survive public perception that the Constitution and its reading or interpretation are political acts.
The liberal justices warned against overturning a major Supreme Court precedent so soon after the change in the court’s membership.
Wednesday’s oral arguments began with Mr. Stewart, a former clerk of Justice Clarence Thomas.
Mr. Stewart referred to Planned Parenthood v. Casey, the 1992 case in which justices considered whether to drop the trimester approach in determining fetal viability. The justices declined to do that, but shortened viability from 28 weeks to about 23 weeks.
“Roe versus Wade and Planned Parenthood versus Casey haunt our country,” Mr. Stewart told the justices. “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,” Mr. Stewart said. “And 50 years on, they stand alone. Nowhere else does this court recognize a right to end human life.”
Mr. Stewart said the Mississippi law allows “robust exceptions for a woman’s life and health. It leaves months to obtain an abortion.
“Yet the courts below struck the law down,” he said.
In her opening argument, Ms. Rikelman said, “Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent. Mississippi asks the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will.”
Ms. Rikelman argued the court should refuse to overturn nearly 50 years of precedent for three reasons. The first is a high bar.
“In Casey, this court carefully examined and rejected every possible reason for overruling Roe, holding that a woman’s right to end a pregnancy before viability was a rule of law and a component of liberty it could not renounce. The question then is not whether Roe should be overturned but whether Casey was egregiously wrong to adhere to Roe’s central holding.
“Second, Casey and Roe were correct,” she said. “For a state to take control of a woman’s body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of liberty.”
Ms. Rikelman argued that preserving the woman’s right to make her decision until viability protects her liberty and balances other interests.
“Third, eliminating or reducing the right to abortion will propel women backwards,” she said. “Two generations have now relied on this right, and one out of every four women makes the decision to end a pregnancy.”
She also argued that the Mississippi law would hurt specific groups such as poor women or young people.