The U.S. Supreme Court heard oral arguments on Wednesday in a case that threatens to overturn the constitutional right to access safe and legal abortion across the country. The immediate and overall consensus after the arguments came to a close in Dobbs v. Jackson Women’s Health Organization: Roe v Wade is in serious danger.
The conservative majority on the Supreme Court appeared largely supportive of a 2018 Mississippi law that seeks to ban abortion after 15 weeks of pregnancy. The law directly contradicts Roe v. Wade, the 1973 Supreme Court decision that protects a person’s right to abortion. The decision made it a constitutional right to access safe and legal abortion until a fetus’s viability, which is around 24 weeks. Mississippi’s 15-week restriction is attempting to cut that almost in half.
Conservative justices Clarence Thomas, Samuel Alito and Neil Gorsuch openly suggested that the current viability line under Roe is arbitrary and can be moved, which would effectively overturn the high court precedent. Chief Justice John Roberts along with the two newest members of the court, Justices Brett Kavanaugh and Amy Coney Barrett, were less vocal. All three, however, seemed to be open to tinkering with the gestational limits on abortion, which would also effectively overturn Roe as it stands now.
Although they were in the minority, justices Sonia Sotomayor, Stephen Breyer and Elena Kagan were vehement in their support for abortion as a constitutional right. All three continually pushed back against the argument made by Mississippi Solicitor General Scott Stewart that Roe is not settled law. Each reiterated the far-reaching implications for women and birthing people if the decision were to be overturned.
Sotomayor had, by far, the most scathing questions about Stewart’s argument that moving the viability line from 24 weeks to 15 weeks would have zero impact on women across the country. She pointed out that the simple fact the court was hearing these arguments in Mississippi’s attempt to ban abortion after 15 weeks would tarnish the nonpartisan reputation the Supreme Court has worked to uphold for hundreds of years.
“There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body has been clearly set since Casey and never challenged,” Sotomayor said of the 1992 Supreme Court ruling in Planned Parenthood v. Casey, which ruled states were legally allowed to restrict abortion access as long as it did not impose “an undue burden” on patients.
“You want us to reject that line of viability and adopt something different. Fifteen justices over 30 years, since Casey, have reaffirmed that basic viability line. Four have said no, two of them members of this court, but 15 justices have said yes, of varying political backgrounds,” she continued. “Now, the sponsors of this bill, the House bill in Mississippi, said, ‘We’re doing it because we have new justices.’ … Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
The Supreme Court could strike down the Mississippi law, which would mean Roe remains the law of the land. Or the court could uphold the law, which would effectively overturn Roe and allow states to set their own standards. If that happens, it would trigger bans or constitutional amendments in several states that would immediately outlaw abortion.
The Supreme Court isn’t expected to decide the Mississippi case until spring 2022.
Ahead of the oral arguments, both pro-abortion and anti-abortion rights advocates rallied in front of the steps of the high court. Several members of Congress, including Rep. Pramila Jayapal (D-Wash.) and Sen. Richard Blumenthal (D-Conn.), spoke in favor of abortion rights.
“I am also one of the one in four women in America who have had an abortion. For me, terminating my pregnancy was not an easy choice but it was my choice,” Jayapal told a crowd of supporters.
Rep. Barbara Lee (D-Calif.), co-chair of the Congressional Pro-Choice Caucus, also spoke at the rally. “This issue is about racial equity, equality and justice. This is about the freedom to make your own decisions over your own body. That’s what this is about,” she said. “So, make no mistake, the right to abortion is not real if only some people can access it.”
As Democratic lawmakers took the stage to speak at the rally, anti-abortion protesters could be heard in the background yelling, “We will overturn Roe!”
Some lawmakers in support of abortion rights were later arrested at the rally as the oral arguments began inside the court.
The case centers on the Jackson Women’s Health Organization because it’s the last abortion clinic in Mississippi. It’s been open since 1995 and provides care to around 3,000 patients a year. The majority of the clinic’s patients are Black women, poor women and teenagers.
Although Mississippi currently allows abortions up to 20 weeks, JWHO only has the resources to provide abortions up to 16 weeks. Anything beyond that requires a dilation and evacuation procedure, known as D&E, which brings more costs and paperwork that the clinic simply doesn’t have the resources for.
Shannon Brewer, JWHO’s director, told reporters last month that the 15-week limit would have severe consequences for the clinic’s patients. JWHO sees about 15 to 20 people a month who are 15 weeks pregnant or more. Additionally, any other clinic that would open in Mississippi in the future would lose a five-week window to perform the procedure.
“Mississippi has always been a market leader in anti-abortion laws, so I’m not surprised it’s come to this,” Jenny Ma, a senior staff attorney for the Center for Reproductive Rights working on the Dobbs v. JWHO case, told HuffPost earlier this week. “The 15-week ban is part of a 25-year campaign to eliminate the constitutional right to abortion. This has been a very targeted, intentional approach by anti-abortion legislators in Mississippi.”