Attorney Julie Rikelman, a lawyer representing an abortion provider that sued, pushed back, saying the Mississippi law would do “profound damage to women’s liberty, equality and the rule of law.” U.S. Solicitor General Elizabeth B. Prelogar, also arguing on behalf of the provider, warned that “the real-world effects of overruling Roe and Casey would be severe and swift,” predicting a wave of new restrictions in many states.
Here’s what to know:
Supreme Court appears inclined to uphold Mississippi’s 15-week abortion law, a major shift in its abortion jurisprudence
Return to menuThe Supreme Court on Wednesday signaled that 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.
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 the court’s 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.
The court’s liberals said the institution’s reputation would be irreparably damaged if nearly a half-century of its abortion jurisprudence were dismantled because of a change in the court’s membership. 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.
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. He presented a list of cases in which the court had overturned long-held precedents and said that perhaps the best solution for the court was to be “scrupulously neutral” on an issue about which he said the Constitution is silent.
That would return the issue to the states, where some would mostly prohibit abortion and a majority would impose new restrictions.
Prelogar said the curtailment of abortion rights would be “severe and swift.” She cautioned that the court has never revoked a constitutional right it had extended.
4 takeaways from the Supreme Court arguments on abortion
Return to menuThe 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.
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.
Texan familiar with abortion restrictions travels to Mississippi to ‘stand in solidarity’ with activists
Return to menuJACKSON, Miss. — As someone who works with the Frontera Fund, a small reproductive fund in the Rio Grande Valley in Texas, Cathy Torres knows how difficult it can be to access abortions in a state that is actively passing laws to restrict the procedure. She traveled to Mississippi to “stand in solidarity” with organizers and activists in the state.
“With Texas SB8, which is essentially an abortion ban past six weeks, we’ve been feeling the brunt of abortion bans. We feel for them, we stand with them and we want to show as much support as possible,” Torres said.
While oral arguments were based on the constitutionality of the 15-week ban, Torres said, “We all know the reality is they’re going to decide on the fate of Roe v. Wade.”
Torres said she feels the courts have shown “time and time again” “they’re not here for us.”
Navigating abortions for Texans, the majority of whom have to leave the state to undergo their abortions, has been stressful and a learning curve for organizers on the ground. As Texas border state clinics see increasing traffic, Torres said it is only a matter of time before people who receive funds from Frontera travel to Mississippi.
“Border states are really, really feeling all of the Texas patients heading that way,” she said.
Kavanaugh: ‘You have to pick’ between interest of pregnant woman and fetus
Return to menuJustice Brett M. Kavanaugh argued Wednesday that it was not possible to “accommodate” both the interest of the pregnant woman and the interest of the fetus, according to the existing framework Prelogar mentioned in her argument.
“You have to pick. That’s the fundamental problem,” Kavanaugh said. “And one interest has to prevail over the other at any given point in time.”
Kavanaugh then returned to his argument, as he mentioned in previous questions, that the Constitution is “neutral” on the issue of abortion.
“When you have those two interests at stake and both are important, as you acknowledge … why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” Kavanaugh asked Prelogar. “And there’ll be different answers in Mississippi, in New York, different answers in Alabama than California, because there are two different interests at stake, and the people in those states might value those interests somewhat differently. Why is that not the right answer?”
Prelogar argued it was not the right answer because the court had already “correctly recognized that this is a fundamental right of women and the nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not.”
She agreed that different rules would prevail throughout the country if Roe were overturned, but she said that would simply lead to women seeking illegal abortions or having a child even against their best interests.
Stewart argues that contraception is ‘more accessible’ and ‘affordable’ than it was at the time of Roe
Return to menuIn making his rebuttal Stewart, the Mississippi solicitor general, said respondents argued that parenting burdens were among the main reasons women seek abortions and argued that contraception should address those concerns.
“I would emphasize that contraception is more accessible and affordable and available than it was at the time of Roe or Casey,” Stewart said. “It serves the same goal of allowing women to decide if, when and how many children to have.”
Stewart went on to note that abortions in Mississippi are expensive, saying the lowest cost for the procedure at Jackson Women’s Health is $600, with additional costs related to travel and taking time off work.
Prelogar says the court ‘has never revoked a right’ as ‘fundamental’ as abortion
Return to menuU.S. Solicitor General Elizabeth B. Prelogar said the court “has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society.”
“The real world effects of overruling Roe and Casey would be severe and swift,” Prelogar said. “If this court renounces the liberty interest recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis.”
Justice Clarence Thomas asked Prelogar to “specifically state” what rights she is speaking of — abortion, autonomy or privacy.
“The right is grounded in the liberty component of the 14th Amendment,” Prelogar said. “But I think that it promotes interests and autonomy, bodily integrity, liberty and equality. And I do think that it is specifically the right to abortion here.”
Thomas doubled down on his question, arguing that when it comes to issues of the Second Amendment, he knows what’s being talked about “because it’s written.”
Prelogar argued that the right to abortion is no different because the court, in respect to those other amendments, “has had to articulate what the text means and the bounds of the constitutional guarantees.”
Kavanaugh argues some of ‘most consequential’ Supreme Court cases overturned precedent
Return to menuJustice Brett M. Kavanaugh, arguing for the second time that the Constitution remains “neutral” on the issue of abortion, rattled off a list of more than a half-dozen Supreme Court cases that had overturned precedent.
Those cases included Brown v. Board of Education, which outlawed “separate but equal” doctrine; Baker v. Carr, which set the stage for one person, one vote; West Coast Hotel v. Parrish, which recognized the state’s authority to regulate business; and Miranda v. Arizona, which required police to give “Miranda warnings” about the right to remain silent and have an attorney present to suspects in criminal custody.
Kavanaugh, who had reassured Sen. Susan Collins (R-Maine) that he thought Roe v. Wade was settled law to convince her to vote for his confirmation, continued: “If we think that the prior precedents are seriously wrong … why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is to return to the position of neutrality?”
Center for Reproductive Rights attorney Julie Rikelman argued that that “has never been enough for this court to overrule, and it certainly shouldn’t be enough here when there’s 50 years of precedent.” Instead, she said, the court has required special justification, and Mississippi was not coming forward with any special justification.
Justice Samuel A. Alito Jr. pressed Rikelman along the same lines later, asking repeatedly whether a decision could be overruled “simply because it was erroneously wrong, even if nothing has changed.”
Alito, questioning the issue of viability, says a fetus ‘has an interest in having a life’
Return to menuWhen questioning Center for Reproductive Rights attorney Julie Rikelman about the viability line, Justice Samuel A. Alito Jr. asked her what “does a woman have” when reaching the point of viability that would make her want an abortion that she didn’t have before reaching it.
“Does not the woman have the same interest that she had before viability in being free of this pregnancy that she no longer wants to continue?” Alito asked.
“Viability is a principled line, your honor,” Rikelman replied. Alito interrupted by asking her if she agreed “at least on that point that a woman still has the same interest in terminating her pregnancy after the viability line has been crossed.”
Rikelman agreed.
“On the other side, the fetus has an interest in having a life,” Alito said. “And that doesn’t change, does it, from the point before viability to the point after viability?”
“In some people’s view it doesn’t, your honor, but what the court said is that those philosophical differences couldn’t be resolved,” Rikelman said, before Alito interrupted to say that that’s what he was trying to get at — the philosophical argument.
“There are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics,” Alito said. “But viability is dependent on medical technology and medical practice. It has changed. It may continue to change.”
Rikelman rebutted his argument by saying that the court “set a line between conception and birth and it logically looked at the fetus’s ability to survive separately as a legal line.”
Barrett questions why ‘safe haven’ laws don’t resolve ‘burden of parenting’ arguments
Return to menuJustice Amy Coney Barrett questioned why “safe haven” laws, which protect parents who surrender unwanted infants to hospitals or other designated places against criminal prosecution, don’t resolve the “burdens of parenting” emphasized in both Roe v. Wade and Planned Parenthood v. Casey.
“Insofar as you and many of your amici [supporting legal briefs] focus on the ways in which the forced parenting, forced motherhood would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy,” Barrett asked Rikelman. “Why don’t the safe haven laws take care of that problem?”
Barrett, who has seven children, continued by saying “it doesn’t seem to me to follow” that pregnancy and then parenthood were all part of the same burden.
Rikelman said she did not think safe haven laws mattered because the idea that a woman could place a child up for adoption has been true since Roe was decided. In addition, she argued Roe and Casey did not only focus on the burdens of parenting.
“Instead, pregnancy itself is unique. It imposes unique physical demands and risk on women and in fact has impact on all of their lives and their ability to care for other children, other family members on their ability to work,” Rikelman said. “And in particular in Mississippi, those risks are alarmingly high. It’s 75 times more dangerous to give birth in Mississippi than it is to have a pre viability abortion. And those risks are disproportionately threatening the lives of women of color.”
Rikelman says Mississippi ban is ‘flatly unconstitutional under decades of precedent’
Return to menuJulie Rikelman, the litigation director for the Center for Reproductive Rights arguing for the Mississippi abortion provider, said the state is asking the court to dismantle Roe and allow states “to force women to remain pregnant and give birth against their will.”
Rikelman said the court “should refuse to do so for at least three reasons.”
First, she said, “stare decisis presents an especially high bar here in Casey.” (“Stare decisis” refers to deciding cases based on legal precedent.)
“Second, Casey and Roe were correct — for a state to take control of a woman’s body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings, is a fundamental deprivation of her liberty,” Rikelman argued. “Preserving a woman’s right to make this decision until viability protects her liberty, while logically balancing the other interests at stake.”
Third, she said, “eliminating or reducing the right to abortion will propel women backwards.”
“Generations have now relied on this right and one out of every four women makes the decision to end a pregnancy,” Rikelman said. “Mississippi’s ban would particularly hurt women with a major health or life change during the course of a pregnancy, poor women who are twice as likely to be delayed in accessing care, and young people or those in contraception, who take longer to recognize a pregnancy.”
Kavanaugh: Some states would still ‘freely allow abortion’ if Roe overturned
Return to menuIn a brief line of questioning, Supreme Court Justice Brett M. Kavanaugh seemed to be looking ahead to hypothetical situations if Roe v. Wade were overturned and the issue of abortion returned to states to decide.
“As I understand it, you’re arguing that the Constitution is silent and therefore neutral on the question of abortion,” Kavanaugh asked Stewart. “In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion, but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process. Is that accurate?”
Stewart agreed. Kavanaugh continued by confirming that abortions would still be permitted in many states if Mississippi won its case.
“So … if you were to prevail, the states — majority of states or states — still could or and presumably would continue to freely allow abortion,” Kavanaugh stated. “Many states, some states would be able to do that even if you prevail, under your view. Is that correct?”
Stewart said that was “consistent” with his state’s view and that it would allow “all interests to have full voice.”
Justice Neil M. Gorsuch did not ask any questions of the Mississippi solicitor general.