Supreme Court abortion case: Sotomayor grills Mississippi on ‘stench’ of politics in landmark hearing
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The US Supreme Court heard oral arguments in a landmark abortion case out of Mississippi, which seeks to overturn the high court’s landmark Roe v Wade ruling which cemented abortion rights in the country in 1973.
Conservative justices signalled their likelihood to uphold the Mississippi law at the centre of the case, which bans abortions after 15 weeks. The Supreme Court’s ruling isn’t expected until June 2022.
Overturning Roe would immediately or quickly ban most abortions in more than 20 states, forcing women who can afford it to travel hundreds of miles to safely access care.
Members of Congress joined hundreds of abortion rights activists and anti-abortion demonstrators who braved a chilly Washington DC morning to rally outside the court on Wednesday. US Capitol Police arrested at least 33 people for obstructing traffic near the court.
In her opening remarks, Justice Sonia Sotomayor grilled Mississippi solicitor general Scott Stewart about the overt politics of the abortion case before them, despite 50 years of precedent.
She added: “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?”
“If people believe it’s all political, how will we survive? How will the court survive?” she said.
Justices repeatedly returned to the question of fetal viability outside the womb, at around 24 weeks of pregnancy and a barrier against prohibitive laws established under Roe precedent and later affirmed in Planned Parenthood v Casey.
After nearly two hours of arguments, the Supreme Court’s six conservative justices appeared willing to undermine such precedents.
Follow for live updates as they happened
Justices debate ‘viability’, suggesting Roe could be preserved while allowing states to impose their own bans
Chief Justice John Roberts asked Julie Rikelman with the Center for Reproductive Rights why 15 weeks – which is nine weeks before “fetal 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?”
His line of questioning suggests that he would be open to preserving Roe while also opening the door for states to introduce their own abortion bans at different stages of pregnancy.
He then compared the so-called viability line to China and North Korea.
Rikelman corrected Justice Roberts and agued that Canada, the UK and parts of Europe permit elective abortion up until viability while also facing fewer barriers to access.
Justice Samuel Alito 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.”
Breyer warns about dangers of overturning ‘watershed’ case precedent
Justice Breyer, warning about the danger of the appearance of politics in such cases, turned debate back to the “stare decisis” question.
“The problem with a super case like this ... is people are ready to say, ‘You’re just politicians.’ That’s what kills us as an institution,” he said. “You better be sure normal stare decisis considerations are there in spades.”
Justice Thomas asks why the Constitution protects abortion rights
Justice Clarence Thomas asked where the Constitution protects abortion rights.
“Is it privacy? Autonomy? What would it be?” he said.
Julie Rikelman with the Center for Reproductive Rights said it is enshrined in the 14th Amendment, in which a state “can’t deny someone liberty without the due process of law.”
“Allowing a state to take control of a woman’s body … is a fundamental deprivation of her liberty,” she said.
The “workable line” that needs to be drawn from such protections returns to the question of viability, she said.
Pelosi calls Mississippi law ‘brazenly unconstitutional’
House Speaker Nancy Pelosi has called the Mississippi law in question “brazenly unconstitutional” as she pledged to continue to fight for women’s reproductive health care access. Read her full statement below:
“As the Supreme Court hears arguments in the case of Dobbs v. Jackson Women’s Health Organization, it has the opportunity and responsibility to honor the Constitution, the law and this basic truth: every woman has the constitutional right to basic reproductive health care. “Mississippi’s radical abortion ban, part of a nationwide assault against women’s freedoms targeting in particular women of color and women from low-income communities, is brazenly unconstitutional and designed to destroy Roe v. Wade. Yet again, Republicans are trying to control a woman’s most personal decisions about her body and her family and are trying to criminalize health care professionals for providing reproductive care. The constitutional right to an abortion has been repeatedly affirmed, and any failure to fully strike down the Mississippi ban would seriously erode the legitimacy of the Court, as the Court itself warned in its ruling in Casey, and question its commitment to the rule of law itself. “The House is committed to defending women’s health freedoms and to enshrining into law our House-passed Women’s Health Protection Act, led by Congresswoman Judy Chu, to protect reproductive health care for all women across America.”
US solicitor general warns Supreme Court of ‘unprecedented revocation of rights'
US solicitor general Elizabeth Prelogar with the Justice Department 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 said.
Justice Thomas, again, tried to ask where specifically abortion is protected in the constitution, drawing contrasts to Second Amendment and Fourth Amendment rights.
“Because it’s written, it’s there,” he said. “What specifically is the right here, that we’re talking about?”
“It’s the right of a women prior to viability to decide whether to continue a pregnancy,” the solicitor general said.
Anti-abortion and abortion rights activists rally outside the court
The Independent’s John Bowden is outside the Supreme Court as justices hear arguments in a case that could determine the fate of abortion rights and access in more than a dozen states:
Hundreds of people are gathered, with anti-abortion and abortion rights demonstrators mingling all together, with Westboro-esque protesters yelling “America must repent” less than 10 feet away screaming into a speaker to drown them out, he reports.
The case before the court pose the “greatest threat to Roe we’ve seen in decades,” said Senate Majority Leader Chuck Schumer, addressing the rally.
“The right has packed our courts with extremist judges,” he said. “We will not be intimidated ... Abortion is a right. We will not let right-wing ideology decide what we do.”
One protester screamed back “you’re going to die, Chuck, and meet a righteous god.”
Arguments have ended. So what next?
Arguments have ended in Dobbs v Jackson Women’s Health, and the justices will now mull their votes in private conference. A ruling won’t be determined immediately, and a decision could emerge in weeks or months after it is written. The decision isn’t expected until June or July 2022.
Outside the court, some optimism and vitriol
Demonstrations outside the court continue as today’s hearing comes to a close, reports The Independent’s John Bowden.
“I’m here to say one thing: F*** abortion stigma,” said one activist from Florida.
Other groups outside the court include national abortion advocacy, labour and civil rights groups, as well as right-wing protesters drowning out rally speakers with demonstrations of their own.
“This is the exact reason you women shouldn’t have power” one person said into a mic.
Lexi Hall, an activist with Created Equal, said she is “not particularly optimistic” about Roe being overturned in this case. “We’re focused on making abortion unthinkable” with pictures and images,” she said.
Jenny Ma, senior litigator with the Center for Reproductive Rights, said she is “feeling good” about their chances after oral arguments ended.
“I’m optimistic as an attorney and as someone who believes in the rule of law,” she said.
Several lawmakers joined the rally, including US Rep Cori Bush, among members of Congress who have publicly shared their abortion experiences.
“Justice ... that’s what this building is supposed to represent. Notice I said supposed to,” she said. “There is nothing just about a far-right Supreme Court determined to oppress us.”
Amy Coney Barrett repeatedly discussed ‘safe haven laws’ as alternatives to abortion
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 Julie Rikelman with 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.
Rikelman said that the idea that children could be put up for adoption was also possible during Roe.
Pregnancy “imposes unique physical demands and risk on women and in fact has impact on all of their lives and their ability to care for other children, other family members on their ability to work,” she added.
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.
Overturning Roe would force women to travel more than 100 miles for an abortion
The average American would have to travel roughly 125 miles to reach the nearest abortion provider, according to an analysis from the Myers Abortion Facility database.
More than 20 states would immediately or quickly ban most abortions, if Roe v Wade precedent is overturned, with so-called “trigger” laws activating in several states that would ban the procedure.
Such disparities are far greater in southern states; the average one-way driving distance to a provider would surge to 575 miles for people seeking care in Florida, and 666 miles in Louisiana, according to the analysis.
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