The right to an abortion in the United States appeared to be on shaky ground as a divided Supreme Court heard arguments Wednesday on the fate of Roe v. Wade, the court’s 1973 decision that legalized abortion in the United States.
At issue in Wednesday’s case — Dobbs v. Jackson Women’s Health Organization — was a Mississippi law that bans abortion after 15 weeks. Until now, all the court’s abortion decisions have upheld Roe’s central framework — that women have a constitutional right to an abortion in the first two trimesters of pregnancy, when a fetus is unable to survive outside the womb, roughly between 22 and 24 weeks. But Mississippi asked the Supreme Court to reverse all of its prior abortion decisions and to return the abortion question to the states.
The court’s three newest justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, appeared to signal they are ready to side with Mississippi — but it wasn’t immediately clear if all of them would strike down Roe, as the state of Mississippi had asked.
Summarizing Mississippi’s argument, Justice Kavanaugh said: “They say the Constitution doesn’t give us the authority, we should leave it to the states and we should be scrupulously neutral.”
Justices Brett Kavanaugh and Stephen Breyer clashed over the role the Supreme Court has in overturning its own precedents Wednesday during arguments in a major Mississippi abortion case.
“History tells a somewhat different story, I think, than is sometimes assumed,” Kavanaugh said about stare decisis — the principle that the court should stick to its past rulings.
“If you think about some of the most important cases in this court’s history… there’s a string of them where the cases overruled precedent,” he said.
Kavanaugh continued: “Brown v. Board outlawed separate but equal. Baker versus Carr, which set the stage for one person, one vote. West Coast Hotel, which recognized the state’s authority to regulate business. Miranda versus Arizona, which required police to give warnings… about the right to remain silent… Lawrence v. Texas said that the state may not prohibit same sex conduct. Mapp v. Ohio, which held that the exclusionary rule applies to state criminal prosecution.”
“In each of those cases… and I could go on. And those are some of the most consequential and important in the court’s history, the court overruled precedent,” Kavanaugh said.
A few minutes later Breyer slammed Kavanaugh for making allegedly false equivalencies between Roe and the other cases he cited.
“They do not include the list that Justice Kavanaugh had here… There are complex criteria that she’s talking about that link to the position in the rule of law of this court,” Breyer said. “All I would say is tou have to read them before beginning to say whether they are overruling or not overruling in the sense meant there calling for special concern.”
Breyer was referring to the opinion of former Justice Sandra Day O’Conner in Planned Parenthood v. Casey analyzing when to overturn major precedents.
U.S. Solicitor General Elizabeth Prelogar agreed.
“This is actually another key distinction from the cases that Justice Kavanaugh was referring to,” she said. “The decision to overrule nevertheless, perhaps based on the… conclusion that the justices thought the case was wrongly decided in the first instance, would run counter to the ability of stare decisis to function as a cornerstone of the rule of law.”
Kavanaugh: “You can’t accommodate both interests. You have to pick. That’s the fundamental problem. And one interest has to prevail over the other at any given point in time. And that’s why this is so challenging.”
— SCOTUSblog (@SCOTUSblog) December 1, 2021
Justice Kavanaugh (doing great work for public and media here) reviews the interests of the fetal life. “You have to pick. one interest has to prevail over the other at a point in time. And the question becomes: What does the Constitution say about that. Why should Ct decide?” 👏
— Hugh Hewitt (@hughhewitt) December 1, 2021
Townhall weighed in on the discussion:
When deciding between the interests of a pregnant woman and the interests of an unborn child, “You can’t accommodate both interests. You have to pick.”
Kavanaugh then went on to point out how the courts should figure out how to make that choice. “What does the Constitution say about that?”
Period. Literally end of discussion. The rest is all noise.
On the one hand, a woman has a right to body autonomy and the right to make medical decisions without government interference. On the other, if exercising that right results in the violent death of another life, whose rights then prevail?
In 1973, Roe v. Wade weighed the same question and came down on the side of the woman’s rights over the unborn baby’s rights, but to get there, they had to force themselves to believe unscientific mythology about that unborn life.
The baby in question was consistently referred to as “a meaningless clump of cells” or a “zygote” or even a “parasite.” When the unborn human baby is dehumanized to such an extent, it eases the way for its tidy removal.
Tens of millions of extinguished “fetuses” later, and the dismal results of the evil arguments made in Roe look like a genocide now that science has caught up to the moral and ethical truths behind this ghastly procedure.
Chief Justice John Roberts, a fellow conservative, focused on the argument of fetal viability.
“Why would 15 weeks be an inappropriate line? Viability, it seems to me, doesn’t have anything to do with choice, but if it really is an issue about choice, why is 15 weeks not enough time?” he asked Julie Rikelman, who represented the abortion clinic bringing the case.
Rikelman replied: “If the court were to move the line substantially backwards and 15 weeks is 9 weeks before viability, your honor, it may need to reconsider the rules around regulations because if it’s cutting the time period to obtain an abortion roughly in half, then those barriers are going to be much more important.”
The court’s liberals suggested overturning Roe would make the court appear political.
“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” Justice Sonia Sotomayor asked Mississippi Solicitor General Scott Stewart.