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On Wednesday, the U.S. Supreme Court heard oral arguments for Dobbs v. Jackson Women's Health Organization, a case challenging Mississippi's ban on abortions after 15 weeks of pregnancy.
Jackson Women's Health Organization, the only licensed abortion provider in the state of Mississippi, filed a federal lawsuit against the Mississippi law, arguing that it is unconstitutional based on previous rulings from the high court. Lower courts have ruled the law as unconstitutional.
Mississippi Solicitor General Scott G. Stewart, arguing in defense of the law, asked the court to overturn precedents in Roe v. Wade and Planned Parenthood v. Casey that established a constitutional right to abortion. He said that these precedents "haunt our country," and lack basis in the text of the Constitution.
After the justices finished asking Stewart questions (covered here), Julie Rikelman, an attorney with the Center for Reproductive rights, who is representing Jackson Women's Health, gave her opening statement, arguing Mississippi's abortion ban is "flatly unconstitutional under decades of precedence." The justices also heard arguments from U.S. Solicitor General Elizabeth Prelogar, who is representing the Biden administration against the Mississippi law.
"Mississippi asks the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will," Rikelman said.
She gave three reasons for the court to strike down the abortion ban, first arguing that court precedent is clear that an "especially high bar" must be met before a previous decision should be overturned. Second, Rikelman argued that the landmark decisions in Roe and Casey were correctly decided, and are necessary to prevent the state from seizing control of a woman's body by forcing her to carry an unwanted child to term. She said denying a woman the right to abortion would be a "fundamental deprivation of her liberty," which she argued was protected under the 14th Amendment of the Constitution.
Third, Rickelman said eliminating or reducing the right to an abortion will "propel women backwards." She argued that Mississippi's law disproportionally impacts poor women who may not be able to afford contraception and younger women who may not immediately recognize signs of pregnancy.
Justice Clarence Thomas, the longest-serving member of the court, began questions by asking Rickelman a hypothetical based on a 1997 case in which the Supreme Court upheld the conviction of a woman who had been charged with child abuse for using cocaine during her pregnancy. The court ruled that a viable fetus was considered a person under the state's criminal code.
Thomas asked Rikelman if she thought the state would still have had an interest in pursuing the case against the woman if her unborn baby was not viable at the time she used cocaine. The question is relevant because court precedent established in Casey says that the states cannot ban abortions before fetal viability or in a case where the restriction would place an "undue burden" on a woman's right to a pre-viability abortion. The Mississippi law bans abortions before fetal viability, at 15 weeks.
Thomas wanted to know if the woman who used cocaine has the same right to "bodily autonomy" as the woman who seeks an abortion.
Rikelman did not answer the question directly, saying that "states can certainly regulate pregnancy both before and after viability to preserve fetal life and to preserve the woman's health." She added that "there are other constitutional issues at stake,” and this case is about a "ban on abortion" which she says violates court precedent.
Up next was Chief justice John Roberts, who began a line of questioning about fetal viability and the 15-week provision of Mississippi's law that seemed to suggest he was looking for a way in which the court might uphold the abortion ban without overturning Roe or Casey.
"Viability, it seems to me, doesn't have anything to do with choice. If it really is an issue about choice, why is 15 weeks not enough time?" he asked Rikelman.
In answer, Rikelman said that "without viability there will be no stopping point. States will rush to ban abortion at every point in pregnancy." She noted that Mississippi has also passed a six-week abortion ban, for example.
But Roberts interrupted — "I'd like to focus on the 15-week ban because that's not a dramatic departure from viability. It is the standard that a vast majority of other countries have."
"When you get to the viability standard, we share that standard with the People's Republic of China and North Korea," he added. "And I don't think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those [countries] share that particular time period."
Other conservative justices seemed less interested in the point about fetal viability and focused in on the precedents in Roe and Casey themselves.
Justice Amy Coney Barrett asked about adoptions and whether "safe haven laws" in all states, which allow women to relinquish parental rights over unwanted children shortly after birth, matter. “It seems to me, seen in that light, both Roe and Casey emphasized the burdens of parenting,” she said. Noting that Rikelman made arguments about how "forced motherhood would hinder women’s access to the workplace and to equal opportunities," Barret asked, "Why don’t the safe haven laws take care of that problem?"
Justice Samuel Alito asked a question about whether drawing a fetal viability line for when abortion is permissible and when it is not makes sense at all.
"If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed," he said.
"The fetus has an interest in having a life, and that doesn't change, does it, from the point before viability and after viability?"
Rikelman argued that viability is "objectively verifiable" and is a logical line to draw because it doesn't require the court to resolve philosophical questions about when life begins.
After a discussion involving Roberts and Justice Stephen Breyer on whether Roe and Casey should be considered "super stare decisis," Thomas asked Rikelman a direct question about what constitutional right protects abortion.
"Is it privacy? Autonomy? What would it be?" he asked.
"It's liberty," she replied. "It's the textual protection in the 14th Amendment that the state can't deny someone liberty without due process of law."
Justice Brett Kavanaugh drilled down on the role of the court and precedent. He observed that the "other side" argues that Rikelman's position forces courts "to pick sides on the most contentious social debate in American life," rather than adopt a position of neutrality and let state legislatures hash these debates out.
Rikelman said this issue came up in the court's opinion in Casey and that ruling held that these philosophical disagreements can't be resolved in a way that deprives women of choice. She said the Constitution guarantees liberty and that the court has interpreted liberty to include decisions related to "childbearing, marriage, and family."
Kavanaugh's last question to Rikelman was about stare decisis and monumental court decisions that overturned previous court precedent. Brown v. Board of Education, Lawrence v. Texas, and Obergefell were among the cases overturning precedent that he listed as "some of the most consequential and important" decisions in the history of the court.
“If we think that the prior precedents are seriously wrong,” Kavanaugh asked, “why then doesn’t the history of this court’s practice ... tell us that the right answer is actually a return to the position of neutrality?”
Rikelman responded that the view that court precedent was wrong has "never been enough" to justify overturning stare decisis. "The court has required something else, a special justification, and the state doesn't come forward with any special justification," she argued.
The justices revisited many of these points when Solicitor General Elizabeth Prelogar made her arguments defending the right to abortion. Prelogar said in her opening remarks that the "real-world effects of overruling Roe and Casey would be severe and swift," noting that about half of the states in the union have abortion restrictions on the books that would trigger if Roe is overturned.
Justice Stephen Breyer gave an impassioned plea to his colleagues to read a certain passage from Casey describing when it is appropriate for the court to overturn precedent. Alito asked if it is ever right for the court to overturn a prior decision simply because it was "egregiously wrong" — and Prelogar answered "no," arguing the court has never held that as enough of a reason to overturn stare decisis.
Kavanaugh expressed skepticism that abortion precedent currently accommodates the interests of both pregnant women and unborn children, even suggesting it is impossible to do so.
"You can’t accommodate both interests. You have to pick. That’s the fundamental problem. And one interest has to prevail over the other at any given point in time. And that’s why this is so challenging," he said.
He asked if the right solution was the one offered by Mississippi, for the court to be neutral on abortion and let the elected representatives of the people debate the value of human life versus individual liberty.
"There will be different answers in Mississippi and New York, different answers in Alabama and California, because there are two different interests at stake and the people in those states might value those interests somewhat differently," he said. "Why is that not the right answer?”
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