WASHINGTON (The Hill) – A tense Supreme Court hearing Wednesday, December 1 over Mississippi’s 15-week abortion ban suggested the conservative-majority court is willing to place new restrictions on abortion.
Less clear is how far the court might go in unwinding the legal regime that emerged from Roe v. Wade, which bars states from prohibiting abortion before a fetus is viable, typically around 24 weeks.
“My sense is that it is clear that there is a majority to uphold the Mississippi law,” said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law. “I think the only thing that is unclear is whether the court will flat-out overrule Roe or uphold the Mississippi law without speaking to laws that prohibit abortions even earlier.”
Here are five quotes from the justices that reflect the dynamics of Wednesday’s oral arguments.
Roberts: “At issue before us today is 15 weeks.”
Chief Justice John Roberts, seen as one of the key conservative votes in the case, seemed to be searching Wednesday for an incremental path. In contrast to some of the court’s more stalwart conservatives, Roberts appeared interested in a ruling that might uphold Mississippi’s 15-week abortion ban without explicitly overruling Roe.
His colloquy with the U.S. solicitor general, who argued against the Mississippi law, may have given a window into Roberts’s thinking.
Elizabeth Prelogar, the solicitor general, argued that removing the viability standard would embolden states that seek to restrict abortion even more than Mississippi’s 15-week ban does, further upending the long relied-upon Roe regime “with six-week bans, eight-week bans, 10-week bans and so on.”
“Well, that may be what they’re asking for,” Roberts said. “But the thing that is at issue before us today is 15 weeks.”
Alito: “A case can never be overruled simply because it was egregiously wrong?”
Justice Samuel Alito, on the other hand, seemed more receptive to Mississippi’s bolder arguments calling for overruling Roe.
“Is it your argument that a case can never be overruled simply because it was egregiously wrong?” Alito asked Prelogar.
“I think that, at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn’t done so in this case,” she replied.
“Really? So suppose Plessy v. Ferguson was reargued in 1897, so nothing had changed,” Alito said, referring to the case that endorsed legal segregation by race before being overturned in 1954 by Brown v. Board of Education. “Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?”
Kavanaugh: “Why should this court be the arbiter rather than … the people?”
More than once Kavanaugh asked why the court is the best-suited branch of government to balance the interests of pregnant people seeking abortion against the interest of fetal life.
“Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people, being able to resolve this?” he asked Prelogar. “And there’ll be different answers in Mississippi than New York, different answers in Alabama than California, because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”
Many Republican officials would prefer this approach, including a dozen GOP governors who urged the justices in a friend-of-the-court brief to use the Mississippi case to eliminate federal abortion protections and let states regulate the procedure. In fact, the 2018 Mississippi law, which has been paused during litigation, is just one of hundreds of abortion measures that state legislatures passed in recent years.
Barrett: “Stare decisis … is obviously the core of this case.”
One of the overarching themes in the case is “stare decisis,” the legal doctrine that generally binds courts to abide by their past rulings. Strictly applied, this concept would leave the court no wiggle room to depart 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 core of this case,” it’s not an “inexorable command.” “There are some circumstances in which overruling is possible,” she said.
Sotomayor: “Will this institution survive the stench?”
Justice Sonia Sotomayor, perhaps the court’s most outspoken liberal, minced no words in describing the repercussions if the court were to uphold Mississippi’s controversial 15-week abortion ban.
She suggested the court would be perceived as highly politicized were it to overrule or seriously undermine Roe because such a decision would be viewed as merely a reflection of the court’s new lopsided 6-3 conservative majority.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked Mississippi’s solicitor general. “I don’t see how it is possible.”