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Mississippi solicitor general asks Supreme Court to overturn Roe v. Wade, says abortion cases 'haunt our country'

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The U.S. Supreme Court heard oral arguments Wednesday in a potentially landmark case considering whether Mississippi's 15-week abortion ban is unconstitutional.

Pro-life and pro-choice activists gathered outside the court building to protest in favor of their respective positions, as the decision in this case will have long-lasting consequences for the future of abortion in America.

Background

In Dobbs v. Jackson Women's Health Organization, the court is being asked to decide whether all pre-viability prohibitions on elective abortions are unconstitutional. The case is widely regarded as the most important abortion case in a generation because the state of Mississippi is directly asking the court to overturn precedents established in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) that created constitutional protections for abortion.

The Mississippi law at the center of the case is the Gestational Age Act, passed in 2018. The law bans almost all elective abortions after 15 weeks of pregnancy, with limited exceptions for medical emergencies and cases involving a "severe fatal abnormality." There are no exceptions for rape or incest.

Jackson Women's Health Organization, the only licensed abortion provider in Mississippi, sued the state in federal court, arguing that the law is unconstitutional under Supreme Court precedent in Roe and Casey.

Roe held that the 14th Amendment's due process clause includes a right to privacy that protects the right to have an abortion, but conceded that the government has two compelling interests — the health of a mother and the life of a fetus — that limit the right to an abortion. The case created a trimester framework that established when the government could impose restrictions on abortion, based on the viability of a fetus to live outside the womb.

The court returned to the abortion issue nineteen years later in another landmark case, Casey, in which the court upheld the "essential ruling" of Roe, but replaced the trimester framework. The court said that states cannot ban abortions before viability, which occurs around 24 weeks of pregnancy, but may restrict abortion at all stages of pregnancy as long as the restriction does not impose an "undue burden" on the right to obtain a pre-viability abortion.

Jackson Women's Health Organization contends that the Mississippi law places an "undue burden" on women seeking an abortion by banning the procedure at 15 weeks, which is before the point of fetal viability.

Up to this point, all of the Supreme Court's decisions on abortion cases have upheld the precedents established by Roe and Casey. But former President Donald Trump vowed to appoint justices to the court who would overturn Roe, and three of the court's sitting members — Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — were appointed by Trump.

Conservatives hope, and liberals fear, that a perceived 6-3 conservative majority of Republican appointees on the court are poised to overturn Roe, which would trigger laws banning abortions in 26 states to go into effect.

The argument for Mississippi's law

Mississippi Solicitor General Scott G. Stewart argued that the people, represented by elected lawmakers, have the right to make laws permitting or restricting abortion access and that the courts should take a neutral position on the question of abortion.

In his opening remarks defending Mississippi's law, he said the precedents established by Roe and Casey have "failed" by creating a political situation in the country in which the Supreme Court is being asked to answer questions about human life that properly belong to debate in legislatures.

"Roe v. Wade and Planned Parenthood v. Casey haunt our country," said Stewart. "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."

"The Constitution places its trust in the people," he continued. "On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgement by just a few of us. When an issue affects everyone, and when the Constitution does not take sides on it, it belongs to the people. Roe and Casey have failed, but the people, if given the chance, will succeed."

Justice Clarence Thomas was the first to ask a question. He observed that the court's abortion cases have generally focused on "privacy" and "autonomy." He asked if it makes a difference that the court focuses on those issues rather than a "right to abortion."

Stewart answered that the right to abortion is "not grounded in the text" of the Constitution and is based on "abstract concepts" that should be rejected.

Thomas also asked, "If we don't overrule Casey or Roe, do you have a standard that you propose other than the undue burden standard?"

Stewart suggested that the court provide a "clarified version of the undue burden standard," which he argued is unworkable. He also said the court should adopt a "rational basis review" of abortion jurisprudence, if it does not overturn Roe or Casey.

The liberal justices on the court made appeals to the importance of stare decisis — the legal principle of adhering to precedent. Justice Stephen Breyer quoted passages from the opinion in Casey, warning that re-examining a "watershed decision" without a "compelling reason" to do so would harm the legitimacy of the court.

Justice Sonia Sotomayor spoke against overturning precedent, in agreement with Breyer about the legitimacy of the court.

"The right of a woman to choose, the right to control her own body, has been clearly set forth since Casey and never challenged. You want us to reject that line of viability and adopt something different," Sotomayor said. "Fifteen justices over 50 years have — or, I should say, 30 since Casey — have reaffirmed that Casey viability line. Four have said no — two of them members of this Court — but 15 justices have said yes — of varying political backgrounds."

Sotomayor criticized Mississippi's legislature for passing the law with the direct intent to challenge Supreme Court precedent because there were "new justices" on the court.

"Will this institution survive the stench that this creates in the public perception? That the Constitution and its reading are just political acts? I don't see how it is possible," she said.

Justice Elena Kagan echoed these points in her questions, worrying that the court would be perceived as a "political institution" that would "go back and forth" in response to public pressure.

Later, Sotomayor grilled Stewart on his argument that a right to abortion is not found in the Constitution. Noting that key decisions like Marbury v. Madison, which established judicial review, have established principles that are not found in the text of the Constitution, she asked what made Roe so "unusual" that it needed to be overturned.

Stewart responded that unlike other landmark decisions, abortion is "the purposeful termination of human life."

"How is your interest anything but a religious view?" Sotomayor asked after more discussion. At this point, Justice Samuel Alito chimed in, observing that some secular bioethicists also believe that unborn babies are living human beings.

Stewart said the "philosophical questions" regarding abortion are all "reasons to return this to the people, because the people should get to debate these hard issues."

Justice Amy Coney Barrett asked Stewart if a ruling in favor of Mississippi would endanger precedent on other decisions on issues like contraception or gay marriage, in apparent response to Sotomayor's line of questioning.

Stewart said it would not because those cases involved "clear rules" that did not deal with the "purposeful termination of human life."

In a clarifying question, Justice Brett Kavanaugh asked Stewart to confirm that Mississippi is not asking the Supreme Court to rule abortion unconstitutional and ban it nationwide, but rather is asking for the court to take a silent or neutral position on the abortion question.

"We’re saying it's left to the people, your honor,” Stewart said.

When the justices finished asking Stewart questions, the attorney for the Center for Reproductive Rights began her argument against Mississippi's law, which will be covered in a separate post.

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