In Wednesday’s battle over abortion, both parties are telling the Supreme Court that there is no third ground. The justices have the option of reaffirming or repealing the constitutional right to an abortion.
Roe v. Wade, the historic 1973 decision that established a countrywide right to abortion, is facing its most serious threat in 30 years, in front of a court with a 6-3 conservative majority reshaped by three Trump appointees.
Sherif Girgis, a Notre Dame law professor who worked as a law clerk for Justice Samuel Alito, remarked, “There are no half measures here.”
According to the Guttmacher Institute, a pro-abortion research group, a verdict overturning Roe and the 1992 case of Planned Parenthood v. Casey would result in total bans or severe limits on abortion in 26 states.
The issue before the Supreme Court on Wednesday is from Mississippi, where a 2018 legislation would prohibit abortions after 15 weeks of pregnancy, far before viability. The Supreme Court has never allowed states to prohibit abortion until a fetus can survive outside the womb, which is around 24 weeks.
The judges are also considering cases involving Texas’ considerably earlier abortion restriction, which was enacted at the age of six weeks, however those cases focus on the law’s particular structure and how it may be challenged in court rather than the abortion right. Nonetheless, abortion rights supporters were concerned by the court’s 5-4 decision in September to allow the Texas legislation to take effect in the first place, despite the fact that it depends on citizen lawsuits to enforce it.
Shannon Brewer, who manages Mississippi’s only abortion clinic, the Jackson Women’s Health Organization, said, “This is the most anxious I’ve ever been.”
The facility conducts abortions up to 16 weeks of pregnancy, with roughly 10% of abortions occurring beyond the 15th week, according to Brewer.
She also mentioned that the clinic has witnessed a significant increase in patients since the Texas law went into effect, running five or six days a week instead of two or three.
Lower courts have blocked the Mississippi statute, as well as other abortion prohibitions that rely on traditional state and municipal enforcement mechanisms.
The Supreme Court had never before consented to consider a case involving a prohibition on abortion before to viability. The court indicated it would take up the issue when Justice Ruth Bader Ginsburg died last year and was replaced by Justice Amy Coney Barrett, the third of Trump’s appointments.
Trump promised to nominate “pro-life justices” to the Supreme Court, predicting that they will lead the way in reversing the abortion verdicts. Only Clarence Thomas, one of the justices, has publicly asked for Roe to be overturned.
The Mississippi statute may be upheld without expressly overruling Roe and Casey, a result that would satisfy neither side.
Abortion-rights proponents argue that such a conclusion would be the same as an explicit finding invalidating the previous rulings because it would eliminate the logic that has underpinned over 50 years of Supreme Court precedent.
“A decision sustaining the prohibition would be akin to overturning Roe v. Wade.” “Abortion is illegal two months before viability,” said Julie Rikelman, who will represent the clinic in court.
Abortion opponents, on the other hand, contend that the court, in Roe and Casey, virtually established abortion law and should not make the same error again in this case.
According to Thomas Jipping, a Heritage Foundation legal scholar, if the justices maintain Mississippi’s statute, they’ll have to explain why. “They’re either going to have to come up with another made-up rule,” Jipping said, “or they’re going to have to overrule the two large instances.”
Such a result, according to conservative pundit Ed Whelan, would be a “huge setback” comparable to the 1992 Casey decision, in which a court with eight justices chosen by Republican presidents unexpectedly confirmed Roe.
This court seems to be significantly more conservative than the one that decided Casey, according to legal historian Mary Ziegler of Florida State University’s law department, who believes the court will “overrule Roe or set us on a route to do so.”
If he can persuade a majority of the court to agree, Chief Justice John Roberts could prefer the more gradual approach. Since Chief Justice John Roberts took office in 2005, the court has taken smaller steps on various topics, even when it appeared that there was only one option.
It took two decisions for the Supreme Court to strike down the core of the federal Voting Rights Act, which barred states with a history of discrimination from enacting potentially discriminatory voting legislation.
The court progressed through a series of decisions in the realm of organized labor, eroding the strength of public sector unions.
Before lifting limits on how much money businesses and unions may pump into election campaigning, the high court heard two sets of arguments regarding prohibitions on independent expenditure in politics.
If the court turns to public opinion, it will find poll after poll showing support for Roe, while some surveys also show support for tighter abortion limits.
If Roe v. Wade is overturned, Mississippi is one of 12 states poised to act nearly quickly. These states have passed so-called abortion trigger laws, which would prohibit all or almost all abortions once they take effect.
Women seeking abortions in such states may have to travel hundreds of miles to reach the nearest clinic, or they may be able to receive abortion pills by mail. Medicine-assisted abortions currently account approximately 40% of all abortions.
Some legal arguments in the case make it plain that abortion opponents’ ultimate purpose is not to overturn Roe v. Wade.
According to Princeton professor Robert George and researcher John Finnis, the court should accept that “unborn infants are people” under the 14th Amendment, which would put a stop to practically all legal abortions. Finnis advised Justice Neil Gorsuch on his Oxford dissertation, which was a defense of assisted suicide.
