A majority of Supreme Court justices appeared poised to consider setting new limits on the right to abortion during oral arguments Wednesday over a Mississippi law that takes direct aim at the landmark 1973 decision in Roe v. Wade.
The Mississippi law at issue, which bans virtually all abortions after 15 weeks of pregnancy, conflicts with the nearly five-decade-old rule that says states cannot prohibit abortion prior to when a fetus can live outside the womb, known as fetal viability, which occurs around 24 weeks.
But on Wednesday, the court’s conservatives, who constitute a six-member majority on the bench, posed sharp questions about how firmly rooted Roe’s viability standard is in the Constitution.
“If you think that the issue is one of choice, that women should have the choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice, the opportunity to choice. And why would 15 weeks be an inappropriate line? Viability, it seems to me, doesn’t have anything to do with choice. But if it really is an issue about choice, why is 15 weeks not enough time?” Chief Justice John Roberts asked.
The scene of dueling pro- and anti-abortion activists protesting outside the Supreme Court on Wednesday underscored the enormous stakes and political gravity of a case that sits at the intersection of women’s health and bodily autonomy, deeply held religious beliefs about the sanctity of human life and the potential cost for the court’s legitimacy if the justices depart from past abortion rulings that have been relied upon for generations.
Roberts, along with fellow conservative Justices Brett Kavanaugh and Amy Coney Barrett are seen as key votes in a case that conservatives and anti-abortion activists see as their best chance in decades to undermine or even overrule Roe and related decisions.
Kavanaugh asked multiple times why the court is better suited than Congress or the states to referee a highly divisive fight that pits the interests of pregnant people seeking abortion against the interest of fetal life.
“One interest has to prevail over the other at any given point in time,” Kavanaugh said to the U.S. solicitor general, who argued against the Mississippi law.
“Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people, being able to resolve this? And there’ll be different answers in Mississippi than New York, different answers in Alabama than California, because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”
The 2018 Mississippi law — which has been paused during litigation — is just one of hundreds of abortion measures that state legislatures passed recently, many with the explicit goal of overturning Roe. The uptick in state abortion restrictions coincided with the Supreme Court’s rightward shift that now includes three nominees of former President Trump.
Justice Sonia Sotomayor, one of the court’s more liberal members, said on Wednesday that the court’s reputation would suffer great damage if the justices were to uphold Mississippi’s 15-week abortion ban. Such a decision, she suggested, would be viewed merely as reflecting the court’s new lopsided 6-3 conservative majority composition.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked Mississippi’s solicitor general, Scott Stewart. “I don’t see how it is possible.”
Stewart’s primary argument was that Roe and the court’s 1992 ruling in Planned Parenthood v. Casey were wrongly decided and should be overturned.
The court in Casey held that states may regulate abortion up to the point of fetal viability, so long as the restriction does not pose an “undue burden” on abortion access. Yet that case also affirmed Roe’s prohibition on pre-viability abortion bans.
As a fallback argument, the attorney for Mississippi said the court could eliminate Roe’s viability standard while retaining the undue burden test.
Justice Neil Gorsuch, one of the court’s most conservative justices, asked an attorney for abortion providers about that approach.
“Would that be workable or would that not be workable in your view?” Gorsuch asked attorney Julie Rikelman.
“Without viability it would not be workable, your honor,” said Rikelman, who argued that abortion is a fundamental right that deserves categorial protection before viability.
Both Rikelman, of the Center for Reproductive Rights, and the Department of Justice urged the justices not to depart from precedent, invoking the “stare decisis,” the legal principle that courts should defer to past rulings.
Justices from both sides of the ideological spectrum expressed interest in what criteria is required for courts to overrule past decisions. Justices Stephen Breyer, one of the more liberal justices, as well as Kavanaugh and Barrett sought answers on how to navigate the thorny question.
Barrett said that while stare decisis was “obviously the core of this case,” it’s not an “inexorable command.” She added, “There are some circumstances in which overruling is possible.”
Updated 1:42 p.m.