Judges Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett asked relative softball by Mississippi Attorney General, Scott Stewart, and getting tough with Julie Rikelman, an attorney representing the Jackson Women’s Health Foundation.
Barrett asked about “safe haven laws” and the possibility of women giving up children for adoption.
Thomas, who has campaigned to overturn Roe v. Wade for years, directly asked if there was a constitutional basis for allowing abortion.
The three court libertarians are expected to vote in absolute favor of Roe.
But Chief Justice John Roberts and Chief Justice Brett Kavanaugh may be looking for a middle ground.
Roberts suggested the court could consider Mississippi’s 15-week law as a new viable standard, rather than Roe and Casey’s, which is more than 20 weeks. And Kavanaugh, meanwhile, has asked for confirmation that Mississippi is not asking the court to outright ban abortion, a way of saying it doesn’t overturn Roe while restricting access.
Kavanaugh asked another set of questions that showed he was inclined to dominate with Mississippi and even go as far as Roe backwards.
Roughly speaking, he summarizes Mississippi’s argument for asking the court to interpret the Constitution as neutral on abortion and to return the matter to the state or Congress. He asked Rikelman to answer.
He then asked a question about the staring decision, flagging a number of “consequential” decisions – including on school segregation, voting rights and business regulations – where the court overturned precedent.
If the court listened to arguments that it should follow precedent in those cases, “the country would be a much different place,” Kavanaugh said.
Justice Sonia Sotomayor countered Kavanaugh’s question, citing several court decisions that overturned precedent. In most cases, Sotomayor says, “we recognize and overturn state control over matters that we say belong to individuals.”
Breyer also took issue with the list of cases Kavanaugh cited.
CNN’s Tierney Sneed contributed reporting to this post.
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