The Big Questions SCOTUS Asked in Big Abortion Case

Fate of Roe v. Wade is in their hands, with decision likely in June
By Kate Seamons,  Newser Staff
Posted Dec 1, 2021 11:30 AM CST
The Big Questions SCOTUS Asked in Big Abortion Case
Anti-abortion protesters demonstrate in front of the US Supreme Court on Wednesday in Washington, as the court hears arguments in a case from Mississippi, where a 2018 law would ban abortions after 15 weeks of pregnancy, well before viability.   (AP Photo/Jacquelyn Martin)

It's one of the biggest days for abortion rights in 50 years. On Wednesday, the most conservative Supreme Court in decades took up the case of Dobbs v. Jackson Women's Health, which centers on a Mississippi law that prohibits abortion after 15 weeks of pregnancy, which violates Roe. v. Wade. Lower courts sought to strike down the law based on legal precedent, and the upper court must decide whether to uphold it. The Washington Post reports that in accepting the case, the court said it will rule on whether all bans on abortion before viability (about 24 weeks) are unconstitutional. A decision is expected in June, but plenty will be read into the justices' line of questioning. What you need to know:

  • What Mississippi wants. The state is seeking to have the court explicitly overturn 1973's Roe v. Wade ruling, as well as Planned Parenthood v. Casey (1992). The AP observes that "it's possible the justices just uphold the Mississippi law and [say] nothing more, but abortion rights supporters say that would still effectively overturn the landmark decision."
  • Opening argument I. Mississippi Solicitor General Scott Stewart had this to say in his opening argument: "When an issue affects everyone and the Constitution does not take sides on it, it belongs to the people." CNN reports he frequently referenced the divided public opinion on abortion, saying the issue needs to be in the hands of "the people."

  • Opening argument II. Julie Rikelman, the senior director of litigation at the Center for Reproductive Rights, is arguing on behalf of Jackson Women's Health Organization, Mississippi's only operating abortion clinic. Per SCOTUSblog, Rikelman began with a reference to stare decisis, saying it presents "an especially high bar here" because Casey rejected "every possible reason" for having Roe overtuned.
  • "Stare decisis." That's a legal principle related to the importance of not hastily reversing court precedents, and it quickly came up. Justice Sonia Sotomayor noted that since the 1992 Casey ruling, 15 justices have upheld Roe v. Wade and only four haven't. The Guardian quotes her as saying, "Now, the sponsors of this bill, this house bill in Mississippi, are saying, 'We're doing this because we have new justices on the Supreme Court.' Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts? If people believe it's all political, how will we survive? How will the court survive?"
  • Same tune. Justice Stephen Breyer later said much the same, referencing stare decisis and language in Casey "about the Supreme Court's institutional interest in not looking political," as the New York Times puts it. "That's what kills us as an American institution," he said.

  • More from Sotomayor. She questioned Mississippi's position that Roe v. Wade should be overturned because the Constitution doesn't explicitly address abortion rights, noting the right to birth control and same-sex marriage aren't written in the Constitution either but have "been discerned from the nature of the Constitution." She asked what made Roe v. Wade so "unusual" that it needed to be overturned. Stewart's reply was that this was the only decision that relates to "the purposeful termination of human life."
  • Mississippi's ask. Chief Justice John Roberts pointed out that Mississippi originally sought a review of the viability line as it relates to the state's 15-week law and subsequently expanded its argument to have the prior rulings overturned. Per CNN, "One thing that could influence the court is that its original approval to take up the case was more limited than it has become." SCOTUSblog describes Roberts' questions around viability as "very significant" as they suggest "he is at least mulling the possibility of a ruling that would not formally overturn Roe & Casey but would discard the viability line—opening the door to prohibitions on abortion earlier in pregnancy."
  • Justice Alito. The Times observes that Justice Samuel Alito, who has historically opposed abortion rights, "seems to be exploring the idea of finding a middle ground between upholding and overturning Roe." He had a line of questioning around viability and why that was where the line was drawn, saying that medical advances change when viability occurs and pointing out that a woman who doesn't want to have a baby feels that way before and after viability.
  • Justice Thomas. SCOTUSblog has this from Justice Clarence Thomas, who asked Rikelman to point to the constitutional right that protects abortion. "Is it privacy? Autonomy? What would it be?" Her reply: "It's liberty. It's the textual protection in the 14th Amendment that the state can't deny someone liberty without the due process of law."
  • Justice Kavanaugh. The Guardian's read is that Justice Brett Kavanuagh's questioning indicates he could be willing to reel in abortion rights. "The Constitution is neither pro-life nor pro-choice ... but leaves the issue to the people ... to resolve in the democratic process." He questioned whether the court should be neutral on the topic (a state that would necessitate overturning Roe v. Wade) and leaving it up to the states.
  • The DOJ: The Times reports the Justice Department obtained the court's permission to also present oral arguments in the Mississippi case, "underscoring the intense interest of the Biden administration and Attorney General Merrick B. Garland in the outcome." US Solicitor General Elizabeth Prelogar said this: "The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society."
  • Justice Barrett. Per the Post, Justice Amy Coney Barrett frequently returned to the presence of "safe haven" laws in all 50 states that allow women to give up their parental rights after birth. Prelogar said Roe gives women the freedom to decide whether to terminate a pregnancy, which is different than terminating their parental rights.
(Read more background on the case here.)

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