Supreme Court appears likely to uphold Mississippi's 15-week abortion ban

by Will Stribling, Mississippi Today
December 1, 2021

Attorneys for the state of Mississippi and the Jackson Women's Health Organization clashed for nearly two hours Wednesday as they presented oral arguments to the U.S. Supreme Court on a challenge to the state's 15-week abortion ban.

The case represents the most serious challenge to the landmark decisions of Roe v. Wade and Planned Parenthood v. Casey in decades. When the arguments were said and done, the court appeared unlikely to reaffirm Roe, but the court's six-member conservative majority also appeared split on whether to weaken or overturn Roe entirely. 

Mississippi Solicitor General Scott G. Stewart said that Roe and Casey “haunt our country” and repeatedly asserted that a right to abortion is found nowhere in the text of the Constitution. 

Justice Sonia Sotomayor in turn argued that the Constitution has been interpreted to include many legal principles that are not explicitly laid out in its text. 

Attorney Julie Rikelman, a lawyer representing the Jackson clinic, argued that allowing pre-viability abortion bans to stand would do “profound damage to women's liberty, equality and the rule of law,” essentially making women second-class citizens. 

The conservative justices appeared to repeatedly push back on this argument through their lines of questioning. Justice Brett Kavanaugh pointed out that abortion would remain legal in many liberal states if Roe were overturned and the question of abortion rights was removed from the Court's purview. Justice Amy Coney Barrett repeatedly brought up giving up a baby for adoption as an alternative. Justice Clarence Thomas repeatedly questioned Rikelman on whether criminal child neglect laws can be used to prosecute a woman who abused drugs while pregnant, a clear fetal personhood argument. 

Multiple questions also arose about whether the viability standard, which prevents abortion restrictions before the fetus can survive outside the womb, or 24-weeks of gestation, should remain in place. No alternative was presented by the abortion-rights attorneys when pressed for one.

Justice Samuel Alito asked why viability should be the line for abortion restrictions. He noted that a woman who doesn't want to have a baby has that same interest regardless of how far along she is in the pregnancy. He also noted that the point of fetal viability, when a fetus can survive outside the uterus, is subject to change over time through advancements in medical technology. 

Over the course of the arguments, the Latin phrase “stare decisis” came up often. The phrase refers to a legal doctrine which states the court should stand by its previous decisions and be wary of overturning precedent. 

The court's three-member liberal minority  — Justices Stephen Breyer, Elena Kagan and Sotomayor — showed that the integrity of the court was pressing on their minds throughout the arguments. Recent polls have shown a sharp decline in public perceptions of the court, many viewing it as beholden to political whims. 

Sotomayor was perhaps the most forceful in her language when discussing the dangers posed to the institution if it were to abandon the precedent established in Roe. 

”Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor asked.

Chief Justice John Roberts, viewed as the most moderate of the court's conservative wing, appeared frustrated with what he suggested was a bait-and-switch strategy the state used to transform the case into a challenge to Roe and Casey. In its original petition for Supreme Court review, officials told the justices that overturning Roe or Casey was not required for this case. After the court agreed to hear the case, the state shifted its strategy to a full throated assault on these precedents. 

Roberts voiced his preference to stick to that narrower question on pre-viability bans, saying “the thing that is at issue before us today is 15 weeks.” Alito rejected that position, saying “the only real options we have” are to reaffirm Roe or to overrule it.

In the coming days, the justices will cast their votes in a private conference. Then the members of the majority and minority will draft and share their opinions. Though the average length of time after oral arguments for the court to issue a decision is three months, the decision in this case is not expected till June or July next year, when the most major rulings tend to be released. 

If Roe were overturned, 26 states are certain to or likely to ban abortion altogether. Mississippi's trigger law banning all abortions would immediately go into effect. 

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.