Five revealing quotes from Supreme Court abortion case

WASHINGTON (The Hill) – A tense Supreme Court hearing on Wednesday, December 1 over the 15-week abortion ban in Mississippi suggested the conservative-majority court is ready to impose further restrictions on abortion .

Less clear is how far the court could go to unravel the legal regime that emerged from Roe v. Wade, which prohibits states from banning abortion before a fetus is viable, usually around 24 weeks.

“I feel like it’s clear that there is a majority to defend Mississippi law,” said Erwin Chemerinsky, dean of law at the University of California at Berkeley. “I think the only thing that’s not clear is whether the court will categorically strike down Roe or uphold Mississippi law let alone laws that ban abortions even earlier.”

Here are five quotes from the judges that reflect the dynamics of Wednesday’s pleadings.

Roberts: “The problem we have before us today is 15 weeks. “

Chief Justice John Roberts, considered one of the main Tory votes in the case, appeared to be looking for an additional avenue on Wednesday. Unlike some of the court’s staunchest conservatives, Roberts appeared interested in a move that could uphold Mississippi’s 15-week abortion ban without explicitly overturning Roe.

His colloquy with the US solicitor general, who argued against the Mississippi law, may have opened a window into Roberts’ thinking.

Elizabeth Prelogar, the solicitor general, argued that removing the viability standard would embolden states seeking to restrict abortion even more than the Mississippi’s 15-week ban does, further upsetting the long-touted Roe regime. “with six-week bans, eight-week bans, 10-week bans, and so on.

“Well, maybe that’s what they’re asking for,” said Roberts. “But the thing we have before us today is 15 weeks.”

Alito: “Can a case never be dismissed just because it was totally wrong?” “

Judge Samuel Alito, on the other hand, seemed more receptive to Mississippi’s bolder arguments calling for Roe to be quashed.

Alito is among the judges considered most hostile to the court’s abortion precedent, alongside his fellow Conservatives Justices Clarence Thomas and Neil Gorsuch.

“Is that your argument that a case can never be dismissed just because it was totally wrong?” Alito asked Prelogar.

“I think, at the very least, the state should come up with some kind of materially altered circumstance or some kind of materially new argument, and Mississippi hasn’t done that in this case,” she replied. .

“Really? So let’s assume Plessy v. Ferguson was challenged in 1897, so nothing has changed,” Alito said, referring to the case that approved legal segregation by race before being overturned in 1954 by Brown v. Board of Education “Wouldn’t it be enough to say that it was a dead wrong decision the day it was made and should now be overturned?”

Kavanaugh: “Why should this tribunal be the arbiter rather than … the people?” “

Judge Brett Kavanaugh, who, along with Roberts and Judge Amy Coney Barrett, is seen as a key vote, seemed focused on Mississippi’s argument that abortion is a matter best left to the states.

More than once, Kavanaugh has asked why the tribunal is the best-suited branch of government to balance the interests of pregnant women seeking abortions with the interests of fetal life.

“Why should this court be the arbiter rather than Congress, the state legislatures, the state supreme courts, the people, can solve this problem?” He asked Prélogar. “And there will be different answers in Mississippi than in New York, different answers in Alabama than in California, because those are two different interests at stake and the people of those states might assess those interests a little differently.”

Many Republican officials would prefer this approach, including a dozen GOP governors who urged judges in a friend of the court brief to use the Mississippi case to remove federal abortion protections and leave the states regulate the procedure. In fact, the Mississippi law of 2018, which was suspended during litigation, is just one of hundreds of abortion measures state legislatures have passed in recent years.

Barrett: “Stare decisis… is obviously at the heart of this matter. “

One of the dominant themes of the case is “stare decisis”, the legal doctrine which generally obliges courts to comply with their past decisions. Strictly applied, this concept would leave the court no wiggle room to deviate from Roe.

For the court’s conservatives, their specific concern seemed to center on when the court can abandon stare decisis and break with past rulings.

Barrett, probing the contours of the doctrine, said that while stare decisis was “obviously the crux of this matter”, it is not an “inexorable order”. “There are circumstances under which cancellation is possible,” she said.

Sotomayor: “Will this institution survive the stench?”

Judge Sonia Sotomayor, perhaps the most outspoken liberal in court, was quick to describe the repercussions if the court upholds Mississippi’s controversial 15-week abortion ban.

She suggested that the court would be seen as highly politicized if it overturned or seriously undermined Roe, as such a move would be seen as simply a reflection of the court’s new lopsided Tory 6-3 majority.

“Will this institution survive the stench that this creates in the public’s perception that the Constitution and its reading are only political acts?” She asked the Mississippi Solicitor General. “I don’t see how it’s possible.