Abortion in America faces its fiercest challenge in a generation as the US Supreme Court signaled it is likely to uphold a Mississippi law that mostly prohibits the procedure after 15 weeks of pregnancy.
The Supreme Court, which was dramatically transformed during the four-year tenure of disgraced former President Donald Trump, heard opening arguments Wednesday in a case that could roll back 50 years of reproductive freedom and eliminate the right to privacy enshrined in a controversial 1973 decision.
The nine justices – six of them political conservatives whose minds are probably already set – considered arguments challenging a 2018 law in the State of Mississippi that prohibits most terminations after 15 weeks of pregnancy, in what appears to be the most consequential abortion rights case in generations.
The court is expected to render a decision by next June, and supporters and opponents alike agree the case ruling could be a historic moment regarding a woman’s right to terminate a pregnancy.
In the landmark 1973 decision Roe v. Wade, the court held that access to abortion is a woman’s constitutional right, striking down state laws that restricted the procedure.
In a 1992 ruling, Planned Parenthood v. Casey, the court guaranteed a woman’s right to terminate a pregnancy until the fetus is viable outside the womb, which is typically 22 to 24 weeks.
Chief Justice John G. Roberts Jr., who has been called ‘the most moderate of the conservatives,’ said Mississippi’s limit of 15 weeks was not a “dramatic departure” from viability, and gave women enough time to make the choice to end their pregnancies.
President Joe Biden weighed in on the Supreme Court’s politically explosive abortion law hearing, saying he backs the nearly half-century-old case underpinning current rights.
“I support ‘Roe v. Wade.’ I think it’s a rational position to take. And I continue to support it,” said Biden, who has resisted calls to reform the top court in the wake of Republican efforts to stack the judiciary in favor of an extreme right-wing agenda based on religious zealotry.
The Supreme Court’s rulings did not put an end, however, to conservative and religious opposition to the procedure, and anti-abortion activists believe their moment may have finally arrived after years of political and legal battles.
“We recognize the magnitude of what we are asking,” said Mississippi Attorney General Lynn Fitch, in an opinion piece published by the Washington Post.
She argued that in Roe the court took the difficult task of abortion policymaking “out of the hands of the people” and into those of unelected judges who decide the fate of Americans’ lives.
“It is time to correct that mistake,” she said.
Mississippi has the backing of 18 other Republican-led states, hundreds of lawmakers, the Catholic Church, and anti-abortion groups, some of which have spent millions of dollars on publicity campaigns.
On Tuesday anti-abortion activists were energized by the support of former vice president Mike Pence, a Republican who widely professes a firm Christian faith, expressed confidence Roe would be struck down.
“We may well be on the verge of an era when the Supreme Court sends Roe v. Wade to the ash heap of history where it belongs,” Pence said.
The anti-abortion camp has been galvanized by Trump’s promotion to the court of three justices, giving conservatives a 6-3 majority.
Two justices nominated by Trump replaced defenders of women’s abortion rights — Anthony Kennedy, whose seat went to Brett Kavanaugh, and feminist icon Ruth Bader Ginsburg, whose successor, Amy Coney Barrett, is a devout Catholic.
The impact of the new appointees was apparent on September 1 when the majority of justices refused a request to block a Texas law that bans abortion after just six weeks of pregnancy despite the precedent established by prior rulings from the top court.
The court’s liberal justices said the institution’s reputation would be irreparably damaged if nearly a half-century of its abortion jurisprudence was dismantled because of a change in membership.
In the courtroom today, Center for Reproductive Rights’ Senior Litigation Director Julie Rikelman argued to the Justices that there is no way they can uphold Mississippi’s ban without overturning Roe and nearly 50 years of precedent protecting the right to abortion.
She pointed out that all of Mississippi’s arguments have been heard and rejected by the Court before, and that nothing has changed that would justify a different outcome.
“If the court upholds the ban, which everyone agrees is two months before viability, it is overruling Roe and Casey even if the decision doesn’t use those words,” said Rikelman, who argued that if the justices uphold the Mississippi law “it would be possible for states to ban abortion at virtually any point in pregnancy.”
“For nearly 50 years, the Supreme Court has recognized and protected the right to abortion. Today, we urged the justices to stand by that precedent,” said Rikelman. “Two generations since Roe have come to rely on the availability of legal abortion to shape their lives and futures. The advancements women have made towards gender equality will be sent hurtling backwards if they are unable to control their own bodies, lives and futures.”
Solicitor General Elizabeth B. Prelogar, representing the Biden administration, said the curtailment of abortion rights would be “severe and swift.”
Prelogar cautioned that the court has never revoked a constitutional right after it had been recognized.
Abortion rights activists have been mobilizing, with medical associations and rights groups submitting briefs to the court along with hundreds of Democratic lawmakers and some 500 top athletes.
Citizens on the opposite side, including Marjorie Dannenfelser, president of the anti-abortion group Susan B Anthony List, feel that the justices’ conservative bias is cause for optimism.
“Their willingness to pick up a case like this, where 15 weeks is clearly pre-viability, says to me that we’re at the place where they’re perhaps ready to do something with Roe versus Wade,” Dannenfelser said.
“The energy outside the Court today was overwhelming,” said Shannon Brewer, Clinic Director of Jackson Women’s Health Organization. “People traveled from all corners of the country to come support us. It gave me some sense of hope that we will and must win. The ability to control your own body and future should not depend on where you live. We have fought for so long and so hard to keep our clinic doors open and the fight is not over.”
The right to privacy is not mentioned in the Constitution, but the Supreme Court has said that several of the amendments create this right while other amendments protect Americans’ freedom to make certain decisions about their bodies and private lives without interference from the government.
“Abortion is an absolutely crucial health option. Women need the ability to consult with their doctors and make decisions that are best for their own bodies and life circumstances,” said Vangela M. Wade, president of the Mississippi Center for Justice, which is co-counsel in the case. “The government should never have the power to decide whether and when a woman has a child. Unfortunately, if the Supreme Court upends the constitutional right to choose, millions of women, particularly those in the south, will lose basic control over their bodies and their futures.”
The only thing that has changed since the Supreme Court identified the fundamental right to abortion in 1973’s Roe decision — and later affirmed in 1992’s Planned Parenthood v. Casey — was the appointment of new justices.
“Will this institution survive the stench this creates in the public perception, that the Constitution and its reading are just political acts?” asked Justice Sonia Sotomayor. “If people believe this is all politics, how will we survive? How will this court survive?”