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Roe v. Wade In Serious Danger As Supreme Court Hears Challenge to Mississippi Abortion Ban

Overturning Roe would scramble politics at the state and federal levels

Protestors in front of the Supreme Court. (Photo by Chip Somodevilla/Getty Images)
• December 1, 2021 3:15 pm

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The Supreme Court signaled on Wednesday that Roe v. Wade is in serious jeopardy as it heard oral arguments over a Mississippi law that bans abortion after 15 weeks.

Mississippi is defending its law by pressing the High Court to overturn Roe altogether. The tenor of questioning indicated that outcome is quite possible and perhaps likely.

"This Court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life," Justice Brett Kavanaugh said in a seemingly approving summary of Mississippi's arguments.

Overturning Roe would scramble politics at the state and federal levels. Since the Court first announced a constitutional right to abortion in 1973, the scope of abortion policy has been dictated by Supreme Court precedent. If abortion regulation returned to the states or to Congress, voters would have a direct say on regulations for the first time in decades, touching everything from outright bans to informed consent laws and political speech outside clinics.

Controversy over Roe has not abated in the past five decades. It is a subject of constant criticism from the conservative legal establishment, which believes the Constitution is silent on the matter. And for the left, Roe is non-negotiable, the starting point of its continuing effort to win political support from women.

A dozen states have so-called trigger laws on the books that would immediately ban or restrict abortion in the event Roe is overturned, according to the pro-choice Guttmacher Institute. Nine have pre-1973 bans on abortion that would be enforceable for the first time in decades. Another 14 have codified abortion rights in their state laws, ensuring access in the event Roe is scuttled.

Abandoning Roe could also change the politics of the Court itself. Abortion has dominated judicial confirmations for the last four decades, and reproductive rights are a staple of the High Court's docket. Those disputes have produced some of the most contentious and bitter decisions of the modern era.

The Court's liberal minority seemed to grow increasingly weary as the arguments proceeded. But all three put the screws to former president Donald Trump's three appointees, arguing that the Court should not renounce its precedents based solely on which ideological faction controls the Court, an unmistakable and pointed challenge to Kavanaugh and Justices Neil Gorsuch and Amy Coney Barrett.

"[Precedent] is an important principle in any case and here, for the reasons Casey mentioned, especially so, to prevent people from thinking that this Court is a political institution that will go back and forth … depending on changes to the Court's membership," Justice Elena Kagan warned.

Six justices indicated they will allow restrictions on abortion as early as 15 weeks, so the fate of Mississippi's law was not in doubt.

Four members of the Court's conservative majority—Gorsuch, Kavanaugh, and Justices Clarence Thomas and Samuel Alito—signaled distinct anti-Roe positions in their questions to advocates.

Barrett was less forthright than other members of the Court, but her statements hardly encouraged the pro-abortion side. She questioned whether social and political equality for women depends on abortion access, given that all 50 states have laws allowing mothers to waive their parental rights and turn their babies over for adoption or to the care of state agencies. She was also skeptical that overturning Roe would necessarily jeopardize other decisions on sexual freedom, such as the 2015 decision on same-sex marriage.

Chief Justice John Roberts repeatedly homed in on the 15-week ban itself, rather than the larger question of Roe. But he appeared to be alone in his search for a middle-ground ruling that would sustain Mississippi's ban as well as a constitutional right to abortion. The Biden administration and the Jackson, Miss., clinic made a full-throated defense of abortion precedents as they stand now, and they repeatedly refused to entertain alternatives.

Those precedents turn on a fetus's viability outside the womb. Under Roe and its principal successor, Planned Parenthood v. Casey, the state may restrict or ban abortion once a fetus can survive on its own, but not before.

"I don't think there's any line that could be more principled than viability," solicitor general Elizabeth Prelogar, the Biden administration's Supreme Court advocate, told the justices.

The argument was heated in long stretches and canvassed the Court's most famous cases. In an exchange about precedent, Alito needled Prelogar as to whether the Court can overturn cases simply because they were "egregiously wrong" from the time they were decided, as Roe in his view is. Alito used Plessy v. Ferguson, a notorious ruling that put segregation on constitutional footing, as his example.

Kavanaugh recited a litany of landmark cases, much celebrated and today uncontested, in which the Court overturned its prior cases. He mentioned Brown v. Board of Education, which overturned Plessy, and a 1961 decision that excludes from court evidence obtained illegally, among many others.

His statement drew testy responses from the liberal trio. The Supreme Court, they said, has never revoked a fundamental right it announced itself.

Outside the Court, leftwing judicial groups were discouraged by the proceedings and renewed their calls to add seats to the bench.

"[The Court's] apparent willingness to consider revoking a constitutional right speaks to this Court's lawlessness and underscores the importance of expanding the Supreme Court," said Rakim Brooks, president of the leftwing Alliance for Justice. "Until the conservative majority's power is neutralized, nobody's rights are safe."

Conservative groups sounded notes of cautious optimism, even as the memory of past disappointments lingered.

"We are encouraged by today's oral arguments," said March for Life president Jeanne Mancini. "The court has robbed Americans of the ability to determine abortion policy for themselves for far too long."

A decision in Wednesday's case is expected by summer 2022.