Supreme Court tests Roe; conservative justices mull scrapping ‘viability’ standard for abortion bans


Supreme Court justices flirted Wednesday with scraping away at the landmark 1973 Roe v. Wade decision that created a national right to abortion, pondering whether states should have freedom to bar abortions altogether or at least weeks before currently allowed.

With Mississippi’s ban on most abortions after 15 weeks as the battleground, the high court waded into the most persistent political battle in American life over the past 50 years.

Conservative-leaning justices took aim at the fetal “viability” standard for when states can move to bar abortions, suggesting Mississippi’s 15-week line may be just as valid.

“The thing that is at issue before us today is 15 weeks,” said Chief Justice John G. Roberts Jr.

The last time Roe faced such a fundamental challenge was in 1992 in Planned Parenthood v. Casey. Conservatives had anticipated the court would overturn Roe, but instead a 5-4 ruling reaffirmed the right to abortion — albeit it with a new justification and a new standard that states could act to protect a fetus after “viability.”

Casey also established Roe as a super-precedent of the court, and said those difficult kinds of cases require reticence from justices contemplating overturning it.

The court’s three Democrat-appointed justices vociferously defended that principle. Justice Stephen G. Breyer called Roe a “super case” and warned that overturning it would put the very nature of the high court at risk.

“The problem with the super case like this, the rare case, the watershed case, where people are really opposed on both sides, and they really fight each other, is they’re going to be ready to say no, you’re just political, you’re just politicians. And that’s what kills us,” Justice Breyer said.

But Chief Justice Roberts said Casey’s reasoning led to a “paradoxical conclusion” that the more unpopular a decision, the firmer courts should be in leaving it in place.

“It is certainly true that we cannot base our decisions on whether they are popular or not with the people,” the chief justice said.

Mississippi’s case was argued by state Solicitor General Scott Stewart, who said abortion isn’t found in the Constitution, so decisions on its legality don’t belong to the courts.

“The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue,” Mr. Stewart said. “It belongs to the people.”

Opposing Mr. Stewart were two women — Julie Rikelman, senior director at the Center for Reproductive Rights, and U.S. Solicitor General Elizabeth Prelogar.

Both sides saw deep repercussions.

Justice Amy Coney Barrett pointed out that abortion rights backers’ position that barring abortions infringes on a woman’s bodily autonomy tracks with the current national fight over mandates for vaccines for the coronavirus.

Justice Sonia Sotomayor said if the court does start to toss such a consequential precedent as Roe, gun rights supporters should be wary that the 2008 decision that established a Second Amendment right to private gun ownership could be next.

“There are many political people who believe the court erred in seeing [firearms ownership] as a personal right, as opposed to a militia right,” Justice Sotomayor said. “if people believe it is all political, how will we survive?”

The case is arguably the most momentous one the justices have handled in decades, touching on the most incendiary of issues.

While most other Western nations have reached a detente on abortion, usually through legislative compromise, the judicial fiat that imposed the Roe standard on Americans is the country’s persistent cultural dividing line.

Chief Justice Roberts said only North Korea and China rely on the same kind of viability standard for abortions rights that prevails in the U.S. Most of the world has adopted something similar to the 15-week line that Mississippi has, he said.

Mr. Rikelman countered that the 15-week line is rather soft in many of those other nations and in fact abortion is available to women far longer.

Justice Brett M. Kavanaugh was the most forthright in testing what it would mean to scrap Roe and return the issue entirely to the states, saying there’s not a good way for judges to balance the autonomy interests a woman claims versus those of a fetus to be terminated.

“You can’t accommodate both interests. you have to pick. That’s the fundamental problem, and one interest has to prevail over the other,” Justice Kavanaugh said. “The question then becomes, ‘What does the Constitution say about that?’”

He said: “Why should this court be the arbiter, rather than Congress, the state legislatures, state supreme courts, the people, to resolve this?”

The Guttmacher Institute, which advocates for abortion rights, estimates that if decisions about legality of the procedure are returned to the states, 26 of them are likely to enact stricter access laws.

Nine of those states already have a ban on the books from before 1973, which would presumably be in effect automatically if the court returned the issue to the states. Other states have enacted “trigger” bans, which will snap into place should the court allow.

Abortion rates peaked around 1980 and have been generally declining since, but so have birth rates, suggesting the drop is due more to fewer pregnancies than to a change in attitudes or legal access.

Abortion rights supporters were already plotting ways to help women in those states access the procedure. New York Attorney General Letitia James, who is running for governor in next year’s election, proposed having her state set up a fund to help those women travel to New York for abortions.

On Capitol Hill, House Speaker Nancy Pelosi urged senators to pass a bill that’s already cleared the House that deems abortion “essential health care” and impose minimum federal standards for access to abortion across the country, surmounting state laws.

The justices themselves are also under assault, as liberal activists renewed calls to expand the court’s membership and give Democrats a chance to add more liberal-leaning jurists. They want to even out the 6-3 ratio of justices appointed by Republican presidents versus Democratic presidents.

Wednesday’s case was Dobbs Vs. Jackson Women’s Health Organization.

Dr. Thomas E. Dobbs III is Mississippi’s state health officer. Jackson Women’s Health Organization is the last remaining abortion clinic in the state.

Dr. Dobbs was appealing a ruling by the U.S. Court of Appeals for the 5th Circuit, which upheld a federal district judge’s decision that the state law ran afoul of Roe.

The justices will consider another thorny abortion case this term. Texas enacted a law this year that bars abortions after a fetal heartbeat can be detected — but in a twist, the state turned enforcement over to the public, creating a $10,000 cause of action against anyone who conducts an abortion.

Justices have allowed that law to remain in place but sped arguments on whether the state can be sued to block the private lawsuits from being filed.

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