WASHINGTON – Both sides are telling the US Supreme Court that there is no middle ground in Wednesday’s protests over abortion. Judges can either affirm the constitutional right to abortion or nullify it altogether.
Roe v. Wade, the landmark 1973 ruling that declared abortion a nationwide right, faces its most serious challenge in 30 years before a 6-3 conservative majority court that was reconstituted by three appointments of US President Donald Trump. has been done. ,
“There’s no half-measures here,” said Sheriff Girgis, a Notre Dame law professor who once served as law clerk for Justice Samuel Alito.
According to the Guttmacher Institute, a research organization that supports abortion rights, a decision that reversed the case of Roe and Planned Parenthood v. Casey in 1992 would impose an outright ban or severe ban on abortion in 26 states.
The case being argued Wednesday comes from Mississippi, where a 2018 law would ban abortion after 15 weeks of pregnancy, long before feasibility. The Supreme Court has not allowed states to ban abortions before about 24 weeks when a fetus can survive outside the womb.
Judges weighed separately the disputes over Texas’ much earlier abortion ban, at about six weeks, though those cases turn to the unique structure of the law and how it can be challenged in court, not abortion rights. Still, abortion rights advocates were upset in September by a 5-4 vote of the court to enforce the Texas law, which relies on civil lawsuits to enforce it, to take effect in the first place.
“It’s the most worrying thing ever,” said Shannon Brewer, who runs the only abortion clinic in Mississippi, the Jackson Women’s Health Organization.
The clinic offers abortions up to 16 weeks of pregnancy and about 10% of abortions happen after the 15th week, Brewer said.
She also noted that since the Texas law took effect, the clinic has seen a substantial increase in patients, operating five days or six days a week instead of two or three.
Lower courts blocked the Mississippi law, because they have other abortion restrictions that employ traditional enforcement methods by state and local officials.
The Supreme Court had never previously agreed to hear a case banning abortion. But after the death of Justice Ruth Bader Ginsburg last year and her replacement by Justice Amy Connie Barrett, the third of Trump’s appointments, the court said it would take up the matter.
Trump promised to appoint “pro-life justices” and predicted he would lead the way in overturning abortion decisions. Only one justice, Clarence Thomas, has publicly called for Roe to be dismissed.
The court may uphold Mississippi law without expressly dismissing Roe and Casey, an outcome that would not satisfy either party.
Abortion-rights advocates say the result will be the same as the outright ruling overturning earlier cases because it would erode the Supreme Court’s nearly half-century logic of legislation.
Julie Rickelman, who argued the clinic’s case, said: “The decision to uphold this ban is tantamount to dismissing Roe. The ban prohibits abortions approximately two months before viability.”
On the other hand, abortion opponents argue that the court essentially invented the abortion law in Roe and Casey, and should not repeat that mistake in this case.
Thomas Zipping, legal partner at the Heritage Foundation, said if justices upheld Mississippi’s law, they would have to explain why. They can either dismiss the two big cases, Jiping said, “or they will have to make up another made-up rule.”
Conservative commentator Ed Whelan said such an outcome would be a “massive defeat” similar to Casey’s decision in 1992, in which an eight-judge court appointed by Republican presidents unexpectedly confirmed Roe.
The court appears to be far more conservative than the one that decided Casey and legal historian Mary Ziegler at Florida State University’s law school, said the court would probably “finish Roe or set us on the path to doing so.” “
Chief Justice John Roberts may find the more incremental approach attractive if he can persuade the court’s majority to go along. Since Roberts became chief justice in 2005, the court has taken small steps on some issues, even when it appeared that there was only one binary option.
The court took two cases to tear down the heart of the federal Voting Rights Act, which curtailed potentially discriminatory voting laws in states with a history of discrimination.
In the field of organized labour, the court put forward a series of cases that took away the power of public sector unions.
The high court also heard two rounds of arguments on restrictions on free spending in the political sphere, before removing limits on how much money corporations and unions can invest in campaigning.
If the court looks at public sentiment, it will find poll after poll that shows support for preserving Roe, although some polls also support more restrictions on abortion.
Mississippi is one of 12 states prepared to act almost immediately if Roe turns around. Those states have enacted so-called abortion trigger laws that will take effect and ban all or almost all abortions.
Women seeking abortions in those states may face hundreds of miles of drive to reach the nearest clinic or receive abortion pills by mail. Drug abortion now accounts for 40% of abortions.
Some legal abbreviations in the case make it clear that the end of the row is not the end goal of abortion opponents.
The court must recognize that “unborn children are persons” under the 14th Amendment to the Constitution, a finding that would force an end to nearly all legal abortions, wrote Princeton professor Robert George and scholar John Finnis. Finis was an advisor to Justice Neil Gorsuch on his Oxford dissertation, An Argument Against Assisted Suicide.