Supreme Court appears likely to uphold Mississippi abortion law after arguments in landmark case

Potential ruling could uphold state law or undermine Roe by allowing states to impose their own bans

Alex Woodward
New York
Wednesday 01 December 2021 18:08
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Supreme Court Set to Hear Opening Arguments in Major Abortion Rights Challenge
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The US Supreme Court appears poised to uphold a Mississippi law that bans abortions after 15 weeks of becoming pregnant.

The nine justices presided over roughly two hours of arguments in a major case that could determine the fate of abortion access for millions of Americans, marking the biggest direct challenge to the landmark ruling in Roe v Wade that enshrined the constitutional right to such medical care.

Conservative justices now hold a majority on the nation’s high court, with three appointments under President Donald Trump. A decision in the case is expected by June 2022.

That potential outcome would contradict the 1973 decision in Roe that established a constitutional right to an abortion and prohibited states from banning the procedure before fetal viability at roughly 23 weeks.

Overturning Roe would immediately or quickly ban all abortion in more than 20 states, forcing women who can afford it to travel hundreds of miles to safely access an abortion.

Lower courts have repeatedly struck down the Mississippi law, but the Supreme Court decided to hear the case.

It remains unclear whether the court’s six conservative justices will uphold the law or go further and undermine Roe entirely by allowing states to impose their own bans at different stages of pregnancy.

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In Dobbs v Jackson Women’s Health Organization, Mississippi has pressed the court to dismiss 50-year-old precedent, as well as precedent established in a separate case, Planned Parenthood v Casey, that prohibits states from placing an “undue burden” on abortion access.

Chief Justice John Roberts repeatedly questioned whether the “viability line” was essential to the case, asking Julie Rikelman with the Center for Reproductive Rights why 15 weeks – which is nine weeks before viability outside the womb – is “not enough time”.

“If you think that the issue is one of choice ... viability, it seems to me, doesn’t have anything to do with choice,” he said. “If it really is an issue about choice, why is 15 weeks not enough time?”

Justice Samuel Alito also asked several questions about viability, suggesting the line is “arbitrary”.

“If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed,” he said. “The fetus has an interest in having a life, and that doesn’t change from the point before viability and after viability.”

In a call with reporters following the hearing, Julie Rikelman, who is litigating the case for the Center for Reproductive Rights, said that “overruling or discarding the viability line is the same as discarding Casey and Roe.

“Mississippi conceded in this case that there are people who just cant get to the clinic before 15 weeks,” she said. “Those people are people in difficult circumstances.”

If the court does abandon the viability line, “it will be devastating for women across the country,” Ms Rikelman said. “Viability is the central holding.”

In her opening remarks, liberal justice Sonia Sotomayor grilled Mississippi solicitor general Scott Stewart about the overt politics of the abortion case before them, despite more than a dozen justices over 30 years affirming Roe and Casey, and took aim at Republican state lawmakers looking to strip away such rights because of the new conservative makeup on the court.

“Now the sponsors of this bill ... are saying, ‘We’re doing this because we have new justices on the Supreme Court.’ Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” she asked.

“If people believe it’s all political, how will we survive? How will the court survive?” she said.

She also asked “when does the right of a woman and putting her at risk enter the calculus” when determining law.

“Right now, forcing women who are poor, and that’s 75 per cent of the population, and a much higher percentage of those women in Mississippi who elect abortions before viability – they are put at much greater risk of medical complications,” she said.

She stressed that in Mississippi, at the centre of the case, “those risks are alarmingly high”.

“It’s 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion, and those risks are disproportionately threatening the lives of women of colour,” she said.

She added: “And now the state is saying to these women, ‘We can choose not only to physically complicate your existence … make you poorer by the choice, because we believe...,’ what?”

Justice Amy Coney Barrett, the most recent addition and third Trump appointee to join the court, questioned at several points whether “safe haven” laws – which allow parents to surrender infants without criminal prosecution – resolve the “burdens of parenting” in both Roe and Casey.

In her questioning to Ms Rikelman of the Center for Reproductive Rights, she said her filings “focus on the ways in which the forced parenting, forced motherhood would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy”.

“Why don’t the safe haven laws take care of that problem?” she said.

Ms Rikelman said that the idea that children could be put up for adoption was also possible during Roe.

Pregnancy “imposes unique physical demands and risks on women and [impacts] all of their lives and their ability to care for other children, other family members on their ability to work,” she added.

US solicitor general Elizabeth Prelogar called attempts to undermine abortion access an “unprecedented revocation of rights”.

“The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate full and equally in society,” she told the court.

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