The Politicized Conservative Court Set To Upend 50 Years of Reproductive Freedom
The majority of the Supreme Court signaled that they are open to upholding Mississippi’s ban on most abortions after 15 weeks of pregnancy. It is the most significant test faced by abortion rights in nearly 30 years.
The argument was held for nearly 2 hours, involving the Mississippi law which prohibits abortion after 15 weeks of pregnancy. The high court says, according to the 1973 Roe v. Wade decision and reaffirmed in 1992’s Planned Parenthood v. Casey, states cannot ban abortion before fetal viability, which is 22 to 24 weeks of pregnancy.
The majority of the conservative justices seemed inclined to discard the previous standards, however, the court seemed skeptical and questioned the possible impacts of overturning Roe entirely. There were six conservative justices and each asked questions with some skepticism on the position taken by the abortion-rights group.
Three more liberal justices warned that the court would seem to be a political body if it discarded the abortion laws that have been in place for decades. Justice Stephen Breyer said, “It is particularly important to show that what we do in overturning a case is grounded in principle and not social pressure.
Justice Brett Kavanaugh, appointed to the high court by Donald Trump, said on multiple occasions that abortion policies are best left to the lawmakers and the people. He asked during the argument, “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?”. He also said, “The Constitution is neither pro-life nor pro-choice”.
Chief Justice John Roberts, the most moderate of the conservative majority, seemed to be pushing for the middle ground, asserting the fact that Mississippi’s law does not represent a “dramatic departure” from viability. Roberts asked Julie Rikelmen during the argument, “If it really is an issue about choice, why is 15 weeks not enough time?”
Julie Rikelmen, Senior Director for Center for Reproductive Rights, said during the oral argument, “Mississippi’s ban on abortion, two months before viability, is flatly unconstitutional under decades of precedent.” “Two generations have now relied on this right, and 1 out of every 4 women makes a decision to end a pregnancy.”
Justice Elena Kagan also said that the court shouldn’t act like a political body, going back and forth, according to “what part of the public yells the loudest or changes to the court’s membership”.
Justice Sonia Sotomayor noted that in the years following Joe and Casey, 15 justices have reaffirmed the viability line, while 4 (including 2 of whom are sitting in the court) are against the standard. She also 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 it’s possible.
After the arguments on Wednesday, it seemed unclear whether the court would take extra steps of overturning the abortion laws. However, four of the court’s conservatives, Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Samuel Alito, were prepared to overturn Roe on the basis that it was wrongly decided, despite the people’s years of reliance on it.
Supporters of the law argued that the law’s purpose is to “regulate inhumane procedures” and that the fetus can feel and respond to the pain by that point in pregnancy.
The court has become conservative over the years following the reign of Donald Trump who assigned the three justices, Kavanaugh, Gorsuch, and Barrett. Many legal scholars predicted before the showdown that they wouldn’t want to appear overly partisan. Four of the court’s justices expressed their concerns for that this year and public approval of the court reached a new low this fall.
Estimation last month from the Centers for Disease Control and Prevention indicated that 47 states reported abortion data from 2018 and 2019 and the number of procedures increased by 1.7%. They also reported that 95% of the abortion takes place during the 15-week mark.
The high court’s decision will most likely be out by Summer 2022. A dozen of states, around 17, have already enacted the “trigger bans” or have “pre Roe” abortion bans in place in case the Supreme Court overrules the landmark law.