However, the leader’s gamble would require at least one of the other five conservatives to join him. If not, this newly reworked Supreme Court seems poised to overturn the Roe landmark altogether. One way or another, the courts are poised to retreat to nearly half a century of constitutional defense.
Five Roberts rights conservatives, including three appointees of former President Donald Trump, have been signaling against abortion rights for years. Trump has vowed to appoint judges who will oust Roe, and Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have all previously criticized decisions that give women the option to end their pregnancies.
Despite his history of fighting for abortion rights, institutional-minded Roberts on Wednesday showed little interest in going beyond the exact question the judges agreed to ask: Can states ban abortion before the viability of the fetus without violating the Constitution?
All told, the powerful Q&A represents a new era of American women’s reproductive rights. Not since 1992 has the court heard such a direct threat against Roe, and today’s bench is short of Republican-nominated moderate judges who steered the decision. The 1992 compromise agreement endorsed the core of Roe’s essential hold on allowing a woman to end a pregnancy before the fetus is still alive. .
Due to Covid-19 restrictions, the scene in the courtroom did not have the time, nor the solemnity, to attract the noise of hundreds of protesters outside. The few dozen spectators inside (mostly journalists and law clerks) wore tight masks and were spaced apart on red upholstered benches in a courtroom that normally seats 300.
The judges – all but Sonia Sotomayor were exposed – carried the weight of the moment on their faces, and their questions revolved around important issues of women’s autonomy, fetal survival and the institutional integrity of the courts – built on precedent.
The decisions of Roe v. Wade and Planned Parenthood in 1992 v. Casey used viability as a cut-off point when a state’s interest in preserving fetal life might outweigh the possibility of termination of the pregnancy. woman’s period.
Roberts repeatedly argued that the limitation of viability was arbitrary and unrelated to Roe and Casey’s fundamental property rights—a point that contradicted attorneys who opposed the Mississippi law. At the same time, Roberts revealed an openness to withholding certain rights for women to terminate their pregnancy at an early stage.
The three judges to his left, Stephen Breyer, Sotomayor and Elena Kagan, wanted to preserve the full breadth of Roe v. Wade and Planned Parenthood v. Casey. They note that for more than half a century, women have relied on those rulings, which are woven into America’s legal and social fabric, and to reverse any part of them would harm compliance with the customary precedent of the supreme court.
But the votes of those three liberals – in the minority – are unlikely to decide the resolution of this pause debate.
Which justice will come to an end?
Trump appointees Gorsuch and Kavanaugh seem inclined to dismiss Roe v. Wade. Barrett, perhaps less so, by her questions.
Gorsuch reacted to Roberts’ strategy with skepticism, questioning whether, if the limit of feasibility were removed, judges could develop a new “workability standard”.
Of the other two court conservatives, Clarence Thomas vigorously challenged Roe’s validity but Samuel Alito was not so clear. Alito appears a certain vote to uphold the 15-week Mississippi ban but presumably to postpone a final ruling on Roe.
It seems likely that if any abortion rights emerge from this case, it will pass Roberts’ vote with three libertarians (who nonetheless disagree in favor of the Mississippi law), and a fifth vote from Alito or one of three Trump appointees. .
As an attorney in the Ronald Reagan and George HW Bush administrations, Roberts opposed Roe and even urged the Supreme Court to reverse it. But since being on the bench, he has adopted a more cautious stance.
He voted to uphold regulations on abortion, but, in a 2020 Louisiana dispute, voted to repeal the restriction on doctors performing abortions, based on 2016 precedent. to which he did not agree.
As head and as a justice near the ideological center of the bench, he tried to keep it from going too far to the right.
He has expressed concern about public attitudes towards the court and the potential for political contamination.
Sotomayor addressed that possibility in harsh terms on Wednesday. She mentioned comments from Mississippi’s funders about the abortion ban that showed they believed the court, with its new judges and reinforced conservatism, would welcome the ban.
“Can this institution survive the stench this creates in the public perception that the Constitution and its reading are purely political?” she asked and added, “I don’t see how it’s possible.”
Liberals Breyer and Kagan stress that the court takes precedent seriously, especially when, in this situation, the court seriously reconsidered Roe’s validity and upheld it in 1992.
“Often there has to be a justification, a strong justification, in a case like this, other than you think the case is false,” says Kagan. “And I guess what amazes me when I look at this case is, you know, not much has changed since Roe and Casey, that people think it’s right or wrong based on what they’ve always thought it was. right or wrong. . ”
From the other side of the ideological divide, Kavanaugh has expressed an interest in referring the matter to state lawmakers, which would mean ending any constitutional abortion rights.
He posed a question with the view that “The Constitution does not support life nor does it support abortion, but leave this issue to the people of the states or possibly Congress to resolve in the democratic process. ”
Is a shorter standard of legal viability realistic?
When courts first established the right to abortion in 1973, it was rooted in the 14th Amendment’s due process provision, which protects privacy.
The judges in Roe acknowledged that the Constitution did not explicitly mention the right to privacy but said that in a decision line dating from the late 1800s, “The Court has recognized that the right of individual privacy, or guarantees certain areas or areas of privacy, which do not exist under the Constitution.”
The Roe Court said this right extends to activities related to marriage, contraception and parenting, and is “broad enough to include a woman’s decision whether to terminate a pregnancy.”
As Roberts worked towards some positions that would undercut but not remove that right, he asked Julie Rikelman, representing the Jackson Women’s Health Foundation, if his idea was viable.
“If you think it’s a matter of choice, women should have the choice to end their pregnancy, assuming there was a time when they made the right choice…and why 15 weeks is an inappropriate choice?” asked the judge.
Roberts added that he couldn’t see what the likelihood limit “had to do with choice”.
Rikelman counters that, in fact, some women, who are in the “most difficult situation” during pregnancy, will not be able to get the medical care they need. She said that any alternative standards would be “less principled and less viable than likely to exist.”
She also warned that states will likely drop to fewer weeks, such as happened in Texas, where there is a ban on abortions after about six weeks. The Supreme Court allowed that injunction to be upheld while it assessed the merits of the law’s proceedings.
The court in 1973 tried to balance the interests of the woman with the interests of the fetus and chose survivability as the threshold, at the time, “because the fetus would then have a meaningful viability.” meaning outside the mother’s womb. State regulation of fetal protection this life to viability therefore has both logical and biological reasons.”
Barrett asked about any burdens that women unable to have an abortion would face, related to the ability to adopt a child or give up parental rights under state law.
Why don’t such options “solve that problem?” Barrett asked. “It seems to me to focus the burden on a much narrower scope. Without a doubt, it’s an invasion of bodily autonomy, which we encounter in other contexts, like vaccines. please. It seems to me, however, that disobeying that pregnancy and parenthood are both part of the same burden.”
Rikelman emphasized that the right to abortion includes “body integrity” as well as “deterministic autonomy and in particular decisions regarding childbirth, marriage and reproduction.”
Pregnancy “places special physical needs and risks for women and, in effect, impacts all of their lives, on their ability to care for other children,” Rikelman said. , other family members, to their ability to work.”
Alito tried to poke holes in the justification for cutting off viability. In previous cases, he has sought to limit reproductive rights and may be inclined to reverse Roe altogether.
But in Wednesday’s trading, he appeared to be struggling, like Roberts, for an unequivocal choice as those on the far right or left looking for, for or against Roe.
At one point, Alito asked if “the only real option we have is to reassert Roe and Casey as they stand, or take total control?” If he or any other justice joins Roberts in some sort of mediation attempt, the outcome would be to prevent abortion rights as they exist today.
The question then will be: What remains for the future?
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