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✪ The Supreme Court on Wednesday heard nearly two hours of arguments on the biggest abortion challenge before the court in decades.
✪ Mississippi has asked the court to uphold its law that bans abortion after 15 weeks of pregnancy and to overturn the landmark 1973 ruling, Roe v. Wade.
✪ The court’s conservative justices seemed open to Mississippi’s position.
The Supreme Court on Wednesday seemed open to upholding a 15-week abortion ban in Mississippi in a major case whose decision could ultimately overturn or curtail abortion rights established in the landmark 1973 ruling, Roe v. Wade.
The case, Dobbs v. Jackson Women’s Health Organization, centers on a 2018 Mississippi law that bans abortion after 15 weeks of pregnancy. That’s ahead of the standard set in Roe, which declared that states cannot prohibit abortion before roughly 24 weeks of pregnancy, the point when a fetus can survive outside of the womb, commonly referred to as viability.
Mississippi has asked the nation’s highest court to overrule Roe, as well as another major 1992 abortion decision, Planned Parenthood v. Casey, which established that states cannot impose an “undue burden” on abortion rights.
Scott Stewart, Mississippi’s solicitor general, opened his arguments on Wednesday by ripping into the decades-old rulings.
“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,” he said. “No where else does this court recognize a right to end human life.”
During nearly two hours of oral arguments, the justices grappled with the potential implications of a future without Roe and Casey. The court’s conservative justices, through their questioning, appeared inclined to go somewhat in that direction.
Conservative Justice Samuel Alito questioned the viability mark.
“On the other side, the fetus has an interest in having a life,” he said. “That doesn’t change, does it, from the point before viability to the point after viability?”
The Center for Reproductive Rights’ Julie Rikelman, defending Mississippi’s sole abortion provider, Jackson Women’s Health Organization, responded: “In some people’s view it doesn’t, your honor, but what the court said is that those philosophical differences couldn’t be resolved.”
Justice Brett Kavanaugh, a Trump appointee, also brought up the interests of fetal life versus a pregnant woman on Wednesday.
“You can’t accommodate both interests. You have to pick. That’s the fundamental problem,” he said. “One interest has to prevail over the other at any given point in time, and that’s why this is so challenging.”
Kavanaugh pointed out a series of decisions in which the court overturned precedent, including ending school segregation and legalizing same-sex marriage, and questioned the role of the court.
“If we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality?” Kavanaugh asked. “Why should this court be the arbiter rather than Congress?”
Justice Amy Coney Barrett, the newest member of the court, commented on whether “safe haven laws,” which allow parents to surrender their baby to designated places, such as hospitals, for adoption, matter when considering the “burdens of parenting” discussed in Roe and Casey.
“Why don’t the safe haven laws take care of that problem?” Barrett asked Rikelman.
Rikelman followed up by arguing that the court already considered a woman’s ability to place a child up for adoption when it decided Roe, and that forcing a woman to carry an unwanted pregnancy to term “itself is unique.”
“It imposes unique physical demands and risk on women and in fact has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work,” she said.
Ahead of Wednesday’s arguments, legal scholars told Insider that they expect Barrett and Kavanaugh to have outsized influence over the ruling, with one of them making the deciding vote that could determine the fate of abortion rights in the country.
Chief Justice John Roberts, usually the most moderate of the court’s conservatives, also signaled a willingness to uphold Mississippi’s law but offered a narrower view of the case, focusing on the 15-week ban rather than Roe.
“The point you made about the impact on women and their place in society, those words are certainly made in Roe as well. What we have before us though is a 15-week standard,” Roberts told Rikelman.
“Viability, it seems to me, has nothing to do with choice,” he went on, asking: “If it really is an issue about choice, why is 15 weeks not enough time?” ......
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