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Conservative US supreme court justices on Wednesday indicated support for upholding a restrictive Mississippi abortion law in a ruling that would undermine or outright overturn the landmark 1973 Roe v Wade ruling legalising the procedure nationwide.
The court, which has a 6-3 conservative majority, heard about two hours of oral arguments in the southern state’s appeal to revive its ban on abortion starting at 15 weeks of pregnancy, a Republican-backed law blocked by lower courts. During the arguments, the three liberal justices sternly warned against ditching important legal precedents like Roe v Wade.
Jackson Women’s Health Organization, the only abortion clinic in Mississippi, challenged the law and has the support of Democratic president Joe Biden’s administration. A ruling is expected by the end of next June.
Roe v Wade recognised that the right to personal privacy under the US constitution protects a woman’s ability to terminate her pregnancy. The supreme court in a 1992 ruling called Planned Parenthood of Southeastern Pennsylvania v Casey reaffirmed abortion rights and prohibited laws imposing an “undue burden” on abortion access. Mississippi has asked the supreme court to overturn the Roe and Casey rulings.
“Why is 15 weeks not enough time” for a woman to decide to have an abortion, conservative chief justice John Roberts asked during the argument.
While Chief Justice Roberts seemed to indicate that the court could uphold the Mississippi law without overturning Roe v Wade, some of his fellow conservative justices, including Justice Neil Gorsuch, appeared to be interested in going further.
Democratic process
“The constitution is neither pro-life nor pro-choice . . . and leaves the issue to the people to resolve in the democratic process,” said conservative justice Brett Kavanaugh.
Justice Kavanaugh wondered if the court should be neutral on abortion rights, which would require overturning Roe. If Mississippi wins the case, Justice Kavanaugh added, such a ruling would not prohibit abortion nationwide but would let states regulate it as they see fit.
Julie Rikelman, the lawyer arguing for the abortion clinic that challenged the Mississippi law, said overturning Roe would not mean the court is neutral as it would be saying that even though the constitution’s protects liberty, women “would never have equal status under the constitution”.
Mississippi’s is one of a series of restrictive abortion laws passed in Republican-governed states in recent years. The supreme court on November 1st heard arguments over a Texas law banning abortion at around six weeks of pregnancy but has not yet issued a ruling.
Liberal justice Stephen Breyer quoted from the supreme court’s Casey ruling, which stated that the court should not bow to political pressure in overturning Roe and that such a ruling would “subvert the court’s legitimacy”.
Major precedents
Liberal justice Sonia Sotomayor questioned Mississippi’s lawyer Scott Stewart on whether if Roe were overturned then other major precedents including those on gay rights might also be threatened.
“The issue of when life begins has been hotly debated by philosophers since the beginning of time,” Justice Sotomayor said. “It’s still debated in religions. So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it, because it assumes that a fetus is life?”
Anti-abortion advocates believe they are closer than ever to overturning Roe, a longstanding goal for Christian conservatives.
Justice Sotomayor said Mississippi brought its new challenge purely because of changes on the supreme court, which has become more conservative.
“Will this institution survive the stench this creates?” Justice Sotomayor asked, saying that it would give the impression that the constitution and its interpretation is based purely on politics. “If people think it is all political . . . how will the court survive?”
Conservative justices downplayed the idea that the court must be careful in overturning its own precedents, noting that it has done that in many notable contexts including overturning a notorious 1895 ruling that allowed racial segregation.
“There are circumstances in which a decision . . . must be overruled simply because it was egregiously wrong at the moment it was decided,” conservative Justice Samuel Alito said.
Chief Justice Roberts expressed some scepticism about overturning precedents, noting that “it’s going to be a long list” of past rulings that the justices currently might think were incorrectly decided.– Reuters