Positive Signs from SCOTUS Abortion Arguments

Dec 2, 2021

After almost two hours of oral argument yesterday, the U.S. Supreme Court appears likely to uphold a Mississippi law that bans almost all abortions after the 15th week of pregnancy. The High Court could also decide either partially or totally to overrule the 1973 Roe v. Wade and 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey abortion decisions. The final decision is not expected until sometime before the end of June 2022. 

Although the final decision must await the written opinion, it appears based on the comments and questions of the justices during oral argument that there are six votes to uphold the Mississippi law and five votes to overturn Roe and Casey. However, based on past experience with the Casey decision, the justices can change their votes as the writing progresses. Following the argument on Casey in 1992, the vote was 5-4 to overturn Roe v. Wade. For the first 30 days after the argument and vote of the justices, Chief Justice William Rehnquist was drafting the majority opinion. However, Justices O’Connor and Souter convinced Justice Kennedy to change his vote, which he did on or about May 30. He notified Justice Blackmun, who had authored Roe in 1973 and was still serving on the Court. This switch of Justice Kennedy's vote resulted in a 5-4 decision to modify the Roe trimester scheme with a viability test and thus uphold abortion. For the next month the decision was authored by Justices O’Connor, Souter and Kennedy.

Dobbs, MS Health Officer, et al. v Jackson Women’s Health, et al. concerns a Mississippi law, known as the Gestational Age Act, enacted in 2018 that prohibits abortions after 15 weeks gestation, except in a medical emergency and in cases of severe fetal abnormality. However, the law has never gone into effect since both a federal district court and the Fifth Circuit Court of Appeals blocked it stating that Roe and Casey prevent states from banning abortions before fetal viability, usually around 24 weeks of pregnancy, when the fetus can survive outside the womb. This case marks the first time in which SCOTUS will rule on the constitutionality of a pre-viability abortion ban since the 1973 Roe ruling. 

In his arguments for the state yesterday, Mississippi Solicitor General Scott Stewart said that Roe and Casey “haunt our country.” 

“They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this court recognize a right to end a human life,” Stewart stated.

On the other hand, Jackson Women’s Health Organization attorney Julie Rikelman said, “Mississippi’s ban on abortion two months before viability is flatly unconstitutional. Mississippi asks the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will.” 

U.S. Solicitor General Elizabeth Prelogar, who argued on behalf of the United States, stated, “Erasing or weakening the right to abortion will propel women backward and do profound damage to women’s liberty, equality, and the rule of law.” She added that overruling Roe and Casey would be “an unprecedented contraction of individual rights and a stark departure from principles of stare decisis,” a Latin phrase that means to follow existing legal precedents. 

Justice Clarence Thomas is the one justice who participated in Casey who is still on the court. Justice Thomas has previously stated in his opinions that the High Court eventually must face the consequences from its past abortion decisions. He has previously written that the abortion decisions have no basis in the Constitution. 

Justices Thomas, Samuel Alito, Amy Coney Barrett and Brett Kavanaugh appeared to agree that Roe and Casey should be overruled. Justice Kavanaugh said that the Constitution does not directly address abortion and that the issue should instead be left to the democratic process. The Court, he suggested, should remain “scrupulously neutral on the question of abortion — neither pro-choice nor pro-life.” He refenced several cases in which the High Court overruled prior decisions. Describing those rulings as some of the “most consequential and important in the Court’s history,” Justice Kavanaugh said that if the Court had simply adhered to its precedent, the United States “would be a much different place.” He asked, “If we think that Roe and Casey are seriously wrong, why isn’t the correct answer to overturn them and return to a position of neutrality?” 

Justice Alito asked Prelogar whether the 1896 decision in Plessy v. Ferguson, holding that racial segregation laws did not violate the Constitution if “separate but equal” facilities were available, could have been overruled one year after it was handed down. Prelogar agreed that “it certainly was egregiously wrong on the day that it was handed down,” but would not say it should have been overturned simply on its merits if nothing else had changed. 

Justice Gorsuch asked Rikelman to respond to Mississippi’s argument that the “undue burden” of parenting standard, which courts apply to abortion regulations before viability, “has proved difficult to administer.” Justice Barrett also suggested that “safe haven” laws, which allow parents to give up their newborns at designated safe places, might help to ease the burdens of parenting. 

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan emphasized the importance of prior precedent and stressed that overruling Roe and Casey would undermine the Court’s legitimacy. 

Chief Justice John Roberts focused his questioning primarily on the 15-week ban, rather than on overruling Roe and Casey. Chief Justice Roberts also suggested that 15 weeks would be enough time for women to decide whether to obtain an abortion when he asked Rickelman, “Why would 15 weeks be an inappropriate line?” 

Liberty Counsel filed an amicus brief on behalf of a diverse group of organizations, churches, religious leaders, and individuals, including 70,000 African American and Hispanic churches and millions of African Americans and Hispanic Americans across the United States, who are asking SCOTUS to overturn Roe because legalized abortion is unconstitutional, violates the right to life, and supports racist eugenics. 

Liberty Counsel Founder and Chairman Mat Staver said, “The Supreme Court is a legitimate institution when it follows the history, text and meaning of the Constitution. To suggest that the Court should continue to adhere to an opinion not based in the Constitution to maintain its legitimacy is backward. The Court is not a political arm when it is bound by the original meaning of the Constitution. It becomes political only when it issues opinions like Roe v. Wade that have nothing to do with the Constitution. Every church in America should be discussing this case and praying for the justices. The blood of more than 62 million innocent children is on our hands since 1973, and we must stop this genocide now.” 



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