Regardless of your position on the issue it’s not anyone’s secret that the 1973 Roe v. Wade Supreme Court decision was not based on jurisprudence, but merely a radical and intentional shift toward the dismantling of what constitutes a human life.
Not since ’73 has the SCOTUS considered overturning that decision — until now.
Members of the Supreme Court’s conservative majority are suggesting they may make sweeping changes to limit abortion rights in the United States.
The high court heard arguments on Wednesday in which the justices are being asked to overrule the court’s historic 1973 Roe v. Wade decision legalizing abortion and its 1992 ruling in Planned Parenthood v. Casey, which reaffirmed Roe. Under those decisions, states can regulate but not ban abortion up until the point of viability, at roughly 24 weeks.
Chief Justice John Roberts and Justice Samuel Alito were among those who questioned the viability line, with Alito referencing those who have said the line “really doesn’t make any sense.”
The court is hearing a case about a Mississippi ban on abortion after 15 weeks. The state of Mississippi is telling the justices that Roe and Casey should be overturned and its law banning abortion after 15 weeks upheld.
Justice Brett Kavanaugh, one of the conservatives, suggested the court should leave the issue of abortion to Congress and the states and “return to the position of neutrality.”
Kavanaugh argues favorably for State’s Rights in the case of abortion, questioning why the high court remains the arbiter of personal health care choices.
Earlier in the arguments the Supreme Court’s three liberal justices said that reversing Roe and Casey would severely damage the court’s legitimacy.
They aren’t wrong, actually.
If the Justices actually reverse the Roe decision, it’s only inevitable that it will then be seen as a biased political entity, not an objective observer of written law.
But does that justify the mass murder of unborn babies?
“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.
A fair question but still not solid enough to erase the stench mass abortion creates.
It’s possible the justices just uphold the Mississippi law and says nothing more, but abortion rights supporters say that would still effectively overturn Roe.
The case comes to a court with a 6-3 conservative majority that has been transformed by three appointees of President Donald Trump, who had pledged to appoint justices he said would oppose abortion rights.
The court had never agreed to hear a case over an abortion ban so early in pregnancy until all three Trump appointees — Justices Kavanaugh, Neil Gorsuch, and Amy Coney Barrett — were on board.
A month ago, the justices also heard arguments over a uniquely designed Texas law that has succeeded in getting around the Roe and Casey decisions and banning abortions in the nation’s second-largest state after about six weeks of pregnancy. The dispute over the Texas law revolves around whether the law can be challenged in federal court, rather than the right to an abortion.
Despite its unusually quick consideration of the issue, the court has yet to rule on the Texas law, and the justices have refused to put the law on hold while the matter is under legal review.
Joined by the Biden administration, the Mississippi clinic also says that since Roe, the Supreme Court has consistently held that the “Constitution guarantees ‘the right of the woman to choose to have an abortion before viability.’”
Erasing viability as the line between when abortions may and may not be banned would effectively overrule Roe and Casey, even if the justices do not explicitly do that, the clinic says.
Justice Clarence Thomas is the only member of the court who has openly called for Roe and Casey to be overruled. One question is how many of his conservative colleagues are willing to join him.
That’s a formulation Kavanaugh has used in a recent opinion, and Mississippi and many of its allies have devoted considerable space in their court filings to argue that Roe and Casey fit the description of being egregiously wrong.
“The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” Mississippi says.
In its earlier rulings, the court has rooted the right to abortion in the section of the 14th Amendment that says states cannot “deprive any person of life, liberty, or property, without due process of law.”
Same-sex marriage and other rights, based on the same provision but also not explicitly mentioned in the Constitution, could be threatened if Roe and Casey fall, the administration argues. Mississippi and its supporters dispute that those other decisions would be at risk.
A decision is expected by late June, a little more than four months before next year’s congressional elections, and could become a campaign season rallying cry.
Author: Elizabeth Tierney