The Supreme Court heard oral arguments over a Mississippi abortion law that could change the Court’s abortion jurisprudence for decades to come, as the case will put to the test the survivability of Roe v. Wade—the Supreme Court case that made abortion a constitutional right in the 1970s.
The Mississippi law bans most abortions after 15 weeks. The legislation was approved by the state legislature a couple of years ago but has been temporarily suspended by the courts, ultimately making its way to the Supreme Court. Crucially, the bill challenges the viability standard that was set in an abortion case during the 1990s, which has served as the benchmark for legality over abortions.
Currently, all abortions conducted before the fetus is considered to be able to live outside the mother’s womb are allowed.
Additionally, the prosecutors of the bill also asked for the Court to completely overrule Roe v. Wade, claiming individual states should decide whether abortion is legal or not.
The arguments showed a clear divide between the liberal and conservative justices of the court, with the formers showing concerns over reversing a precedent that has been in the books for decades and the latter giving grounds over the legal and practical difficulties of the current abortion jurisprudence. Some have prognosticated that the Court’s conservative majority would most likely rule in favor of the state law.
However, the issue at stake is not limited to the constitutionality of the Mississippi law itself, as the justices will have to decide if the viability standard continues and if abortion itself is to be considered a federal issue or an issue limited to the states.
The arguments for overruling Roe v. Wade
Mississippi’s arguments were based on the principle that the Court’s rulings making abortion a constitutional right were terrible mistakes, which were rooted neither in a textual interpretation of the Constitution nor in traditions, while also taking the issue away from the democratic process, throwing the Court in the middle of a political argument it can’t resolve. For Scott Stewart, Mississippi’s Solicitor General, the issue of abortion is so difficult that it can only be resolved by the people themselves.
When pressed by Justice Brett Kavanaugh if overruling Roe and Casey v. Planned Parenthood—the case that reaffirmed Roe and introduced the viability standard—would mean a nationwide ban on abortions, Stewart said that is not the case. Kavanaugh further argued that as the Constitution is silent about abortion, the Court is neutral about it and has no authority to mandate states to either prohibit or ensure abortions.
Chief Justice Roberts, who voted to outlaw a Louisiana ban on abortion in 2020, seemed inclined in upholding the Mississippi’s law maintaining the 15-week limit. Roberts also argued that if the issue over abortion is to give women a choice, then 15 weeks is more than enough time for women to make a decision.
Pro-abortion argument is based on upholding precedent
The liberal justices cast doubts over overruling Roe or Casey by focusing on a judicial principle called stare decisis, which means that the Court should adhere to established precedent unless in very extreme circumstances. Justice Sotomayor said that a ruling against Roe would undermine the Court’s legitimacy in the public eye, who would potentially view the Court as a political institution.
However, this point was heavily contested by many of the conservative Justices in the court. Kavanaugh remembered the Court that the most famous cases were actually occasions when the bench overturned previous rulings, with Kavanaugh citing the cases that banned segregation in public schools, enshrined Miranda rights (the ones made famous in TV Crime shows), opened the doors to ensure voting rights, and allowed same-sex marriage as examples.
U.S. Solicitor General Julie Rikelman argued that a decision could be overruled after it has been proven that the factual statements supporting the original decision have been proven wrong. A point that Justice Alito contested, taking the Court’s decisions that allowed decades of racial segregation to be legal as an example of a time when the Court should have to overrule a decision because it was egregiously wrong.
The Court is set to make a final decision next year. It seems likely that the six Justices forming the conservative wing will uphold the Mississippi law, however, it is still unclear if five out of those six Justices will agree in overturning Roe V. Wade, leaving the decision of abortion back to the states.
Daniel is a Political Science and Economics student from the University of South Florida. He worked as a congressional intern to Rep. Gus Bilirakis (FL-12) from January to May 2020. He also is the head of international analysis at Politiks // Daniel es un estudiante de Cs Políticas y Economía en la Universidad del Sur de la Florida. Trabajo como pasante legislativo para el Representate Gus Bilirakis (FL-12) desde enero hasta mayo del 2020. Daniel también es el jefe de análisis internacional de Politiks.