By Tom Strode
WASHINGTON — The U.S. Supreme Court’s oral arguments on Dec. 1 left pro-life advocates hopeful the justices are poised to uphold a state ban on abortion after 15 weeks’ gestation and possibly to overturn long-standing decisions in support of legalized abortion nationwide.
During a nearly two-hour session, conservative justices questioned the high court’s previous rulings that prohibit bans on abortion before an unborn child is viable in their consideration of Mississippi’s 2018 Gestational Age Act. The high court also pondered at length if it would be appropriate to reverse its own precedent of almost 50 years that struck down all state restrictions on abortion.
The Supreme Court had limited its consideration of the law to whether “all pre-viability prohibitions on elective abortions are unconstitutional.” Viability for an unborn child, or the ability to survive outside the womb, is typically considered to be several weeks after the 15-week limit set by Mississippi’s law.
Mississippi, however, had also asked the high court to overturn the Roe v. Wade opinion of 1973 and the Planned Parenthood v. Casey ruling of 1992, decisions that prohibit states from banning abortions before an unborn child is viable. The Roe decision legalized abortion throughout the country, while Casey affirmed Roe but permitted some state regulation of the procedure.
The questions and comments from the conservative wing of the court suggested the justices’ opinion, which is expected to be issued by next summer, might maintain Mississippi’s ban and undermine Roe without overturning it explicitly or actually reverse Roe and Casey, thereby returning abortion policy to the states.
Pro-life leaders expressed optimism afterward.
“Today was a good day for the pro-life movement” at the Supreme Court, tweeted Brent Leatherwood, acting president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC).
While he acknowledged it is difficult to forecast the court’s ruling based on the oral arguments, Leatherwood said in an ERLC news release, “After listening to today’s proceedings, I’m left asking a simple question: What good is precedent if it is bad? At multiple points, whether it was, for example, the faulty reasoning of Justice Harry Blackmun in his Roe opinion or the irrelevance of the viability standard, it should be abundantly clear that the precedent in the area of abortion is completely unmoored from the Constitution itself.
“Furthermore, it completely disregards the individual whose rights are most affected: the preborn child,” he said. “That cannot continue. Denying the dignity of our most vulnerable neighbors should not be a hallmark of American jurisprudence. Leatherwood and others from the ERLC were in Washington during the arguments. See a photo gallery here.
In friend-of-the-court briefs, the ERLC and some other pro-life organizations urged the Supreme Court not only to uphold the state ban but also to reverse Roe and Casey.
Ed Whelan, distinguished senior fellow at the Ethics and Public Policy Center, said he heard nothing from five justices in the conservative wing of the court that “set off any alarm bells in my mind.” He referred to associate justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
In a post for National Review Online’s Bench Memos, Whelan said Chief Justice John Roberts “seemed to be searching for a middle ground that would enable him to vote in favor of the Mississippi 15-week ban without overturning – or at least without declaring the overturning of – Roe and Casey.” He expressed hope Roberts “will conclude that there is no middle ground and will lead a supermajority of justices to overturn Roe and Casey.”
James Bopp, general counsel of the National Right to Life Committee, described the oral arguments in a written statement as “very encouraging. It is apparent from the questions that a majority of the Court is seriously considering at least rejecting the viability line that currently prohibits prohibitions on abortion prior to viability.”
During the arguments, Mississippi Solicitor General Scott Stewart told the justices the Roe and Casey decisions “haunt our country. They have no basis in the Constitution. They have no home in our history or traditions.
“For 50 years, they’ve kept this court at the center of a political battle that it can never resolve.”
In arguing for the abortion issue to be returned to the states, Stewart said, “Roe and Casey have failed, but the people, if given the chance, will succeed.”
Julie Rikelman, senior litigation director of the Center for Reproductive Rights, contended the Mississippi law “is flatly unconstitutional under decades of precedent.”
The Casey and Roe opinions “were correct,” she said. Stare decisis, a legal doctrine that says a court should abide by its previous rulings, “presents an especially high bar here,” Rikelman told the justices.
The Roe and Casey decisions protect a woman’s liberty rights, and viability as the dividing line in abortion law has proven to be “enduringly workable,” she said.
Roberts, however, said viability, “it seems to me, doesn’t have anything to do with choice” and asked why 15 weeks would be “an inappropriate line” for a woman to have had a choice for an abortion.
“When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea,” Roberts said. “And I don’t think you have to be in favor of looking to international law to set our constitutional standards to be concerned if [you] share that particular time period” with two oppressive regimes.
Regarding stare decisis, Alito asked Elizabeth Prelogar, the U.S. solicitor general, if Plessy v. Ferguson, an 1896 Supreme Court ruling that found racial segregation laws were constitutional, should have been overturned if it were reargued a year later. The high court did not correct Plessy until 1954 in Brown v. Board of Education.
“I think it should have been overruled, but I think that the factual premise was wrong in the moment it was decided, and the court realized that and clarified that when it overruled in Brown,” said Prelogar, who argued in opposition to the Mississippi law in behalf of the Department of Justice.
Members of the high court’s liberal wing – Stephen Breyer, Sonia Sotomayor and Elena Kagan – expressed skepticism about, if not opposition to, reversing the Roe and Casey precedents.
In 2018, a federal judge invalidated the Mississippi law because it prohibits pre-viability abortions. The Fifth Circuit Court of Appeals in New Orleans affirmed the ruling the following year in the case, Dobbs v. Jackson Women’s Health Organization.
Mississippi’s ban permits an exception for threats to the life or “substantial and irreversible impairment of a major bodily function” of the mother. It also allows an exception for a “severe fetal abnormality” that “is incompatible with life outside the womb.”
If Roe is overturned, 26 states are either certain or likely to prohibit abortion, according to an Oct. 28 analysis by the Guttmacher Institute, a research and policy organization that supports abortion rights.
The United States has one of the most permissive abortion policies in the world. A study released in July by the pro-life Charlotte Lozier Institute showed 47 of 50 European nations ban elective abortions or restrict them to 15 weeks or earlier. The United States reportedly is one of only six countries, including China and North Korea, that permit elective abortions after 20 weeks’ gestation. B&R