The debate over abortion is one of the longest-standing battles in modern American politics. And conservatives have reason to feel they’re within arm’s reach of winning it, with arguments Wednesday in front of the Supreme Court about a Mississippi abortion ban.
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A conservative Supreme Court built up significantly by former president Donald Trump is considering whether a 15-week ban on most abortions in Mississippi should be upheld. If the law or some of it is upheld, abortion could quickly become illegal in as much as half the country.
The justices are expected to rule sometime this summer, but the oral arguments usually provide some clues about how the justices view the case.
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While we wait for that, here are four takeaways from Wednesday’s arguments.
1. At least four conservative justices seem ready to overturn some abortion protections
That the court even agreed to hear this ban — lower courts have quickly knocked it down, as they have other state laws attempting to ban abortion so early in a pregnancy — suggested that some justices were willing to entertain curtailing the right to abortion in America.
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The court usually only takes cases when there is a conflict in lower courts. And lower courts have all agreed that Mississippi’s 15-week ban is unconstitutional.
There is no federal law protecting abortion rights; it’s up to the states to govern abortions, but for now they have to do it guided by the Supreme Court’s protections to allow it up to halfway through a pregnancy.
During oral arguments on Dec. 1, Justice Brett M. Kavanaugh argued that the “other side” thinks the court should leave abortion rights to each state. (The Washington Post)
Mississippi bans abortions months before the current standard set by the 1973 Roe v. Wade case, where the Supreme Court said abortion should be available until a fetus is viable to live outside the womb (that’s currently understood as being around 24 weeks).
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Mississippi is effectively asking the court to nix that 50-year legal precedent, plus another legal precedent from the 1992 Planned Parenthood v. Casey case, where the court said states can’t impose an “undue burden” on the ability of women to seek an abortion.
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These legal precedents, said Mississippi Attorney General Scott Stewart, “haunt our country,” using strong language to open his arguments. “Nowhere else does the court recognize a right to end human life.”
It’s the most aggressive antiabortion argument before the court in years.
We’re reading the tea leaves here, but at least four justices seemed opened to making such a ground-shifting ruling on abortion. Justice Clarence Thomas was first out of the gate with questions elevating the right’s legal arguments. Justice Samuel Alito and Brett M. Kavanaugh and Amy Coney Barrett all asked softball questions to Mississippi.
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The court only needs five votes to radically change abortion rights. If those four sided with Mississippi, it would be one vote from winning.
Supreme Court seems inclined to uphold Mississippi abortion law
2. The court could decide on a middle ground to allow abortion bans earlier
Anything short of the court striking down the law in full would be a loss for abortion rights supporters.
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Letting this law stand would have “profound damage to women’s liberty, equality and the rule of law,” argued Julie Rickelman of the Center for Reproductive Rights, an abortion rights group behind the lawsuit. She framed this as a fundamental freedom question: “Abortion has been critical for women’s equal participation in society.”
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It does seem like there’s an option for a compromise, though: to let Roe v. Wade stand, protecting a woman’s right to abortion, but to allow states to ban abortion earlier — perhaps months before the current standard of when a fetus is deemed viable to live outside the womb. “Why would 15 weeks be an appropriate line?” asked Chief Justice John Roberts.
“Roberts indicated he may be open to a middle approach,” said Lisa Soronen, executive director of the State and Local Legal Center, which supports states and local governments in cases before the Supreme Court.
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Justice Neil M. Gorsuch also asked about a potential middle ground to let abortion protections stand but let states ban it earlier.
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Those are two potential GOP-appointed justices who could determine things, if the other four do indeed side with Mississippi (which is no sure thing, it bears emphasizing).
But coming to any kind of compromise would be a sea change for abortion rights in America. The right to abortion before 24 weeks, argued liberal Justice Elena Kagan, “is part of the fabric of women’s existence in this country.”
If the justices allow some or all of the 15-week Mississippi law to stand, that could be reality in as much of half of the country.
3. The court is aware of the political pressure on it
Public polls show that the Supreme Court is increasingly unpopular, as Americans come to view it less as an independent, third branch of government and more as an extension of the ongoing political battles between Republicans and Democrats.
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Liberal justices argued vociferously that if the court were to change abortion protections, it would erode public confidence in it even more — perhaps fatally so. Justice Sonia Sotomayor pointed out that Mississippi’s state Senate leader said legislatures passed an unconstitutional ban specifically because the court was now more conservative, with three new justices put on it by Trump, who said he wanted to appoint people hostile to abortion rights.
During oral arguments on Dec. 1, Justice Sonia Sotomayor referred to public perception of the Supreme Court‘s decisions on a Mississippi anti-abortion law. (The Washington Post)
“Will this institution survive the stench this creates in the public perception, that the Constitution and its reading are just political acts?” she asked. “If people believe this is all politics, how will we survive? How will this court survive?”
If the court overrules such entrenched legal precedent — known in legal terms as stare decisis — said Justice Stephen G. Breyer, “people are going to be ready to say, no, you’re just political, you’re just politicians.”
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Roberts in particular has seemed reluctant to have the court make such far-reaching decisions, but he’s no longer a required vote for the conservative side of the court.
4. The ruling will probably come at a politically important moment
We may not know what the justices think about this case and a legal procedural question on a six-week abortion ban in Texas until next summer.
That is just a few months before the congressional midterm elections. Results are mixed about how Supreme Court battles motivate each side’s base, but there is a real question of whether Republicans, having achieved a decades-sought-after goal, could in effect be the dog that catches the car on abortion, writes The Fix’s Aaron Blake, who looked a public polling and asked whether it’s the left that will suddenly be motivated in elections if abortion rights are taken away.
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If the court upholds parts of either law, expect abortion rights to topple across the nation. At least a dozen states have trigger laws that would automatically end most abortions, while some liberal states have laws in place that would protect rights.
At the congressional level, House Democrats voted to protect abortion rights under federal law this fall, but Republicans in the Senate would never let that through. It would take Democrats keeping their tenuous hold on power in Congress and agreeing to get rid of the filibuster to reinstate abortion rights nationally.