WASHINGTON — Both sides told the U.S. Supreme Court that there was no middle ground in Wednesday’s abortion controversy. Judges can reaffirm the constitutional right to abortion or remove it altogether.
Roe v. Wade, the landmark 1973 ruling declaring the right to abortion nationwide, is facing its most serious challenge in 30 years before a court with a 6-3 conservative majority was won by three. was appointed by US President Donald Trump remade. .
“There’s no remedy here,” said Sherif Girgis, a Notre Dame law professor who served as law clerk to Justice Samuel Alito.
According to the Guttmacher Institute, a research organization that advocates for abortion rights, Roe’s overturned ruling and Planned Parenthood’s 1992 case v. Casey would lead to outright bans or severe restrictions on abortion in the United States. 26 states.
The case being debated Wednesday comes from Mississippi, where a 2018 law would ban abortion after 15 weeks of pregnancy, before it becomes feasible. The US Supreme Court has never allowed states to ban abortions before about 24 weeks when the fetus can survive outside the womb.
Judges are separately weighing disputes over Texas’ much earlier abortion ban, at about six weeks, though those cases are based on the law’s unique structure and how it can be contested at court, not the right to abortion. However, abortion rights advocates remain troubled by the September 5 court vote to allow the Texas law, which relies on citizens’ lawsuits to enforce it, into effect. right from the start.
“This is the most anxiety-provoking thing I’ve ever experienced,” said Shannon Brewer, who runs the only abortion clinic in Mississippi, the Jackson Women’s Health Foundation.
The clinic offers abortions up to the 16th week of pregnancy, and about 10% of abortions it performs take place after the 15th week, Brewer says.
She also noted that since the Texas law went into effect, the clinic has seen a significant increase in patient numbers, operating five or six days a week instead of two or three.
Lower courts blocked the Mississippi law, as they had other abortion bans that adopted traditional methods of enforcement by state and local officials.
The Supreme Court has never even agreed to hear a case about the abortion ban before it went into effect. But following the death of Justice Ruth Bader Ginsburg last year and her replacement by Justice Amy Coney Barrett, the third of Trump’s appointees, the court said it would continue the case. .
Trump has pledged to appoint “pro-life judges” and predicts they will take the lead in overturning abortion rulings. Only one justice, Clarence Thomas, has publicly called for Roe to be overthrown.
The court could uphold Mississippi law without explicitly dealing with Roe and Casey, an outcome that would not satisfy either party.
Abortion rights advocates say that outcome would be similar to a ruling that completely overturns previous cases as it would erase the nearly half-century-old foundation of Supreme Court law.
“A decision to uphold this ban is tantamount to ignoring Roe. This moratorium bans abortion about two months before it goes into effect,” said Julie Rikelman, who will contest the clinic’s case.
Opponents of abortion, on the other hand, argue that the court essentially invented the abortion law in Roe and Casey, and that the same mistake should not be repeated in this case.
If the judges support Mississippi’s law, they will have to explain why, said Thomas Jipping, a legal fellow with the Heritage Foundation. They can get through two big cases, says Jipping, “or they’ll have to come up with a different rule.”
Conservative commentator Ed Whelan said such an outcome would be a “severe defeat” on par with the 1992 Casey ruling, in which a court of eight judges appointed by Republican presidents ruled unexpectedly reconfirmed Roe.
This court has been far more conservative than the court that decided Casey, and legal historian Mary Ziegler at Florida State University law school, said the court will likely “handle the role or place them.” I am on the road to do so.”
Chief Justice John Roberts may find the incremental approach more appealing if he convinces a majority of the courts to agree. Since Roberts became chief justice in 2005, the court has taken smaller steps on some issues, even when it appeared there was only one binary option.
It took two cases for the courts to break with the focus of the federal Voting Rights Act to restrict potentially discriminatory voting laws in states with a history of discrimination.
In the area of organized labor, courts have dealt with a series of cases that have shaken the power of unions in the public sector.
The high court also heard two rounds of arguments about restrictions on independent spending in politics before removing limits on how much money corporations and unions can pour into campaigning.
If the courts consider public sentiment, they will seek poll after poll that shows support for preserving Roe, although some surveys also show support for Roe. greater restrictions on abortion.
Mississippi is one of 12 states ready to act almost immediately if Roe capsizes. Those states have enacted so-called abortion-triggering laws that go into effect and ban all or nearly all abortions.
Women in those states who want an abortion may have to drive hundreds of miles to get to the nearest clinic or they may receive the abortion pill in the mail. Medical abortion currently accounts for 40% of abortions.
Several legal briefs in the case make it clear that Roe’s end is not the ultimate goal of anti-abortion advocates.
Courts should recognize that “unborn children are those” under the 14th Amendment to the Constitution, a conclusion that would force an end to almost all legal abortions, said Professor Robert George and academics. author John Finnis of Princeton wrote. Finnis was an advisor to Justice Neil Gorsuch on his Oxford thesis, an argument against assisted death.