The Supreme Court on Wednesday signaled it is on the verge of a major shift in its abortion jurisprudence, and is likely to uphold a Mississippi law that mostly prohibits the procedure after 15 weeks of pregnancy.
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Whether that would mean overruling Roe v. Wade’s finding that women have a fundamental right to end their pregnancies was unclear. But none of the six conservatives who make up the court’s majority expressed support for maintaining its rule that states may not prohibit abortion before the point of fetal viability, which is generally estimated to be between 22 and 24 weeks.
Chief Justice John G. Roberts Jr., often the most moderate of the conservatives, said Mississippi’s limit of 15 weeks was not a “dramatic departure” from viability, and gave women enough time to make the choice to end their pregnancies.
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The court’s liberal justices said the institution’s reputation would be irreparably damaged if nearly a half-century of its abortion jurisprudence was dismantled because of a change in membership.
During Supreme Court oral arguments on Dec. 1, Justice Sonia Sotomayor pointedly refuted several arguments supporting a Mississippi anti-abortion law. (The Washington Post)
But the nearly two-hour argument seemed to indicate that is exactly what would happen, with the three nominees of President Donald Trump — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — key to the court’s decision expected to come several months from now.
See all updates from today’s arguments
Oral arguments can be misleading at times, with justices playing devil’s advocate in their questioning. But Kavanaugh in particular gave abortion rights supporters little to cheer in his comments and questions.
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He presented a list of cases in which the Supreme Court had overturned long-held precedents, and said perhaps the best solution was for it to be “neutral” on an issue in which he said the Constitution is silent.
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That would return the issue to the states, where some would effectively prohibit abortions and a majority would impose new and dramatic restrictions.
Solicitor General Elizabeth B. Prelogar, representing the Biden administration, said the curtailment of abortion rights would be “severe and swift.” She cautioned that the court had never revoked a constitutional right it had extended.
Graphic: What abortion laws would look like if Roe v. Wade were overturned
The court’s liberals said the only thing that has changed since it found a fundamental right to abortion in 1973’s Roe decision — and later affirmed in 1992’s Planned Parenthood v. Casey — was the arrival of new justices.
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“Will this institution survive the stench this creates in the public perception, that the Constitution and its reading are just political acts?” asked Justice Sonia Sotomayor. “If people believe this is all politics, how will we survive? How will this court survive?”
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But the court’s conservatives said it has often overruled cases, especially in constitutional cases, that have later been revealed to be wrong.
Justice Clarence Thomas has said in previous decisions that Roe should be overruled. Justice Samuel A. Alito Jr. seemed in his questioning to agree.
Mississippi Solicitor General Scott G. Stewart said the time had come to take that step.
The constitutional right to abortion has “no home in our history or tradition” and has resulted in “millions” of lives lost, he said. The issue should be decided by state legislatures, he said.
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Julie Rikelman, a lawyer for the Center for Reproductive Rights representing Mississippi’s only abortion clinic, said turning the issue over to the states would allow legislatures to “take over” women’s bodies and force them “to remain pregnant and give birth against their will.”
Graphic: What the Supreme Court’s nine justices havesaid about abortion and Roe v. Wade
The court’s decision in Roe said women have a fundamental right to an abortion. Casey said there could not be prohibitions on abortion before viability and that regulations on the right could not impose an “undue burden” on a woman’s choice.
A Kansas City, Mo. abortion doctor travels across state lines every month to provide abortion care at clinics in the midwest. (Whitney Leaming, Alice Li/The Washington Post)
While much of the solemn deliberations turned on whether to overrule the precedents, Roberts was especially intent on what he said was the issue before the court: whether all pre-viability prohibitions on elective abortions were unconstitutional.
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He noted that Justice Harry Blackmun, who wrote the Roe opinion, had said in private papers that the viability line was arbitrary. He noted that many nations had restrictions on abortion in line with the Mississippi law.
There was little support among the arguing lawyers or his colleagues for what seemed to be a suggestion for compromise.
Analysis: Chief Justice John Roberts: From key swing vote to potential bystander?
Prelogar, Biden’s solicitor general, said viability was a principled place to draw a line, between conception and birth. If viability was removed, she said, the courts would face a continuing series of laws restricting abortion at earlier stages than 15 weeks.
But Roberts is fond of incremental steps when moving the law, and rewriting the court’s precedents to remove the viability line might become appealing as the justices deliberate the case.
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The viability line has been cited across the country by judges who have struck down state prohibitions one after another that attempted to ban abortions earlier in pregnancy.
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“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick E. Higginbotham wrote for the U.S. Court of Appeals for the 5th Circuit majority that refused to allow the Mississippi law to take effect.
Mississippi passed the law in 2018. It would prohibit abortions after 15 weeks, with narrow exceptions for medical emergencies or severe fetal abnormality.
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But to Prelogar’s point, the state also has a court-blocked law restricting abortions after six weeks of pregnancy, and a so-called trigger provision that would practically eliminate abortion should Roe be overturned.
Exactly a month ago, the court considered another abortion challenge, involving a unique Texas law that bans most abortions after six weeks of pregnancy and allows enforcement by private citizens.
That case is more procedural, and involves whether federal courts have the ability to stop such a law that runs against current constitutional protections for those seeking abortions.
The court has not yet issued a decision in the Texas case.
Wednesday’s case is Dobbs v. Jackson Women’s Health Organization.
Mariana Alfaro, Ann E. Marimow, Amy B Wang and John Wagner contributed to this report.