Conservative justices in the US supreme court have signaled their support for curbing abortion access during oral arguments in the most important reproductive rights case in decades, threatening the future of abortion access across the country.
Campaigners have warned the case poses a direct threat to the legal underpinnings of Roe v Wade, a landmark 1973 decision that guaranteed the constitutional right to abortion. In their lines of questioning on Wednesday, liberal justices warned against abandoning important legal precedent, while conservatives argued for reviewing it.
“The constitution is neither pro-life nor pro-choice … and leaves the issue to the people to resolve in the democratic process,” said the conservative justice Brett Kavanaugh, who was controversially appointed to the bench by former president Donald Trump.
The case is named for Dr Thomas Dobbs, the head of Mississippi’s health department and the official seen as the chief enforcer of the law, and Jackson Women’s Health Organization, the last abortion clinic in Mississippi. The court is expected to issue a decision on the case in June 2022, but oral arguments offer clues to the justices’ thinking ahead of the ruling.
The case centers on whether the state of Mississippi can ban abortion at 15 weeks’ gestation, roughly nine weeks before bans are permitted under current law.
Hundreds of protesters gathered outside the court to show support for, or opposition to, abortion rights – one of the most contentious issues in the US. Some held signs that read “Abortion is healthcare”, while abortion opponents held signs reading “abortion is murder” and “repent or perish”.
Dobbs is the first abortion rights case to be heard by the new, conservative-dominated bench. Trump successfully confirmed three justices to the court, and thus created a new conservative supermajority with six of nine justices leaning to the right. While far from a foregone conclusion, questions from conservative justices appeared to show there was not a majority to uphold Roe v Wade in its current form.
Conservative justices including Kavanaugh indicated an interest in overturning Roe, and allowing states to determine their own laws. In that scenario, more than half of US states are expected to ban or severely restrict abortion access.
But they also considered upholding Mississippi’s 15-week abortion ban, which would not overturn Roe but would substantially weaken it.
Liberal justices challenged Scott Stewart, the solicitor general of Mississippi, on whether the state’s argument was fundamentally religious; whether overruling Roe would lead to other rights being overturned, such as gay marriage and the right to contraception; and how the court’s legitimacy would be affected by potentially overturning such an important decision.
Referring to the 1992 supreme court ruling Planned Parenthood of Southeastern Pennsylvania v Casey, which reaffirmed abortion rights and prohibited laws imposing an “undue burden” on abortion access, the liberal justice Stephen Breyer said the court should not bow to political pressure in overturning Roe. He said such a ruling would “subvert the court’s legitimacy”.
Perhaps the harshest questioning came from Justice Sonia Sotomayor, who asked how the court could overturn a “watershed” case such as Roe with its reputation intact.
“The right of a woman to choose, the right to control her own body, has been clearly set since Casey and never challenged. You want us to reject that line of viability and adopt something different,” Sotomayor said.
Sotomayor said Mississippi brought its new challenge purely because of changes on the supreme court bench.
“Will this institution survive the stench this creates?” Sotomayor asked, saying it would give the impression that the constitution and its interpretation is based purely on politics. “If people think it is all political … how will the court survive?”
Conservative justices adopted different lines of questioning, including whether the constitution is “neutral” on the question of abortion; whether there was a right to abortion in the “history and tradition” of the US; whether viability was an “arbitrary” line; and whether a case can be overruled because it was “egregiously wrong” at the time it was handed down.
Kavanaugh questioned Julie Rikelman, an attorney for the Center for Reproductive Rights who represents the Jackson Women’s Health Organization, about whether the court should be involved in abortion rights at all. He asked her to respond to Mississippi’s argument that, as he put it, “the court has been forced … to pick sides on the most contentious social debate in American life.”
Rikelman said that the court had already heard and rejected those arguments and abandoning abortion as a constitutional right would not be neutral: “The constitution provides a guarantee of liberty.”
The conservative justice Amy Coney Barrett, also appointed under Trump, asked whether women could simply “terminate their parental rights” at the end of a pregnancy by giving a child up for adoption, instead of seeking an abortion.
“There is, without question, an infringement on bodily autonomy which we have another contexts like vaccines,” said Coney Barrett. “But it doesn’t seem to me to follow that pregnancy and parenthood are all part of the same burden.”
Chief Justice John Roberts, also conservative, appeared to express interest in upholding Mississippi’s 15-week ban. “Viability,” generally regarded as 24 weeks, “doesn’t have anything to do with choice,” said Roberts. “Why is 15 weeks not enough time?”
Abortion rights advocates had considered the court’s decision to hear the case to be a warning sign. The court could have cited the precedent set by Roe to refuse to hear the case, but the fact it was accepted for oral arguments meant at least four justices saw merit in revisiting Roe v Wade.
A ban on nearly all abortions at or after 15 weeks would represent a huge blow for abortion access across the county. To allow such a restriction, the court would need to issue a ruling that would overturn or substantially weaken Roe v Wade, which in many states is the only legal protection guaranteeing the right to abortion access.
If Roe v Wade were overturned, 26 states are expected to move to make abortion illegal. About 40 million women of reproductive age, or about 58% of the people who can get pregnant in the US, live in states considered hostile to abortion rights. Law enforcement experts believe criminalizing abortion, again, would lead to a public health crisis and a wave of prosecutions.
The case comes after conservative justices allowed Texas to undermine Roe within its borders. As a result, Texas’s law has effectively ended access to the vast majority of abortions in America’s second largest state geographically, where more than six million women of reproductive age reside.