The Justice Department Is Heading Back To The Supreme Court Over Texas Abortion Law

Conservative members of the Supreme Court seemed inclined to chip away at, if not outright overturn, what has been for decades a key tenet of reproductive rights in the US — that states cannot ban abortion before a fetus can survive outside the womb — during arguments Wednesday in a case that could have drastic consequences for the country and its highest court.

The case before the court concerns a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy. In Dobbs v. Jackson Women's Health Organization, the state is calling on the justices to overturn Roe v. Wade, the landmark decision that made abortion legal nationwide almost 50 years ago, and uphold Mississippi’s 15-week ban. If the court rules in the state’s favor, as it seems likely to do based on Wednesday’s arguments, nationwide access to abortion care could crumble. Large swaths of the South and Midwest will likely try to eliminate abortion access, forcing people to travel to other states where reproductive rights are protected or face the risks of carrying unwanted pregnancies to term or ending them in another way.

When the Supreme Court issues an opinion on the case, which likely won’t come until late May or June, it will be the first time the justices will rule on the constitutionality of a law that prohibits abortion before a fetus is viable since Roe. Because of the political blowback that such a decision would provoke, legal experts say, it’s unlikely that the court, even with its 6–3 conservative majority, explicitly overturns Roe. But even a narrower ruling could have devastating implications for reproductive rights.

“Without viability, there will be no stopping point,” said Julie Rikelman, senior director of litigation at the Center for Reproductive Rights, which is representing Jackson Women's Health, the last remaining abortion clinic in Mississippi.

Over the course of nearly two hours, the conservative members of the Supreme Court questioned the utility of the viability threshold, which was implied in Roe and underscored in the 1992 Planned Parenthood v. Casey decision as the point when the states had an interest in protecting the potential life of the fetus. But they seemed split on the idea of overturning Roe and Casey altogether, while the court’s liberal justices gave impassioned speeches on how consequential a decision on the future of abortion protections could be for the country and its highest court.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked.

Chief Justice John Roberts questioned attorneys for the state and Jackson Women’s Health on why the court couldn’t push the threshold up further without overturning Roe, saying it didn’t seem to him that viability had “anything to do with choice.”

“Why is 15 weeks not enough time?” Roberts asked.

Rikelman and US Solicitor General Elizabeth Prelogar, who also argued on the Jackson clinic’s behalf, explained that resetting the threshold at 15 weeks or earlier than the viability point would make it harder for pregnant people, particularly those who are young, poor, or people of color, to access abortion care at all. Some people don’t realize they’re pregnant by 15 weeks; some, due to their financial, medical, or other life circumstances, may not make it to an abortion clinic by then.

“The fact that other women were able to exercise their constitutional rights does nothing to diminish the impact on their liberty interests in forcing them to continue with that pregnancy,” Prelogar said.

The two attorneys argued that there was no compelling reason for the court to overrule Roe and Casey, and that the legalization of abortion has made it possible for women to participate equally in society. Depriving them of that right would “propel women backwards,” Rikelman said.

“If states can take control of women's bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the Constitution,” she said.

Arguing on behalf of the state ban, Mississippi Solicitor General Scott Stewart contended that the abortion is substantially different than any other right identified by the Supreme Court because it entails “a right to end a human life.” Stewart also presented a strict reading of the Constitution, arguing that because abortion is not explicity mentioned, the issue should instead be left to individual states to decide.

“A right to abortion is not grounded in the text,” Stewart said. “It’s grounded on abstract concepts.”

It’s an approach that critics say provides cover for conservatives to reject the expansion of rights for people who have historically faced discrimination, including women, BIPOC, and LGBTQ people. And at least some of the court’s conservative justices appeared to share that point of view on Wednesday. Justice Clarence Thomas, who has explicitly said in previous opinions that the court’s precedents on abortion should be overruled, asked a series of questions on what principles protect the right to abortion.

“It's liberty, your honor,” Rikelman replied.

Meanwhile, Justice Amy Coney Barrett suggested in her comments that adoption and safe-haven laws, which allow parents to surrender newborns without consequences shortly after birth, could make abortion unnecessary and still allow women to retain equality — an argument that the state of Mississippi also made in their brief to the court.

But attorneys arguing on behalf of the clinic noted that both Roe and Casey already took the availability of adoption and those laws into account. And that relying on those options forces parents to decide whether to give up a child for adoption. “That itself is its own monumental decision,” Prelogar said.

In his questioning, Justice Brett Kavanaugh focused on what he described as a “core problem” with the abortion case: that the court has been “forced to pick sides on the most contentious social debate in American life,” when it should instead remain “neutral.”

“Why should this court be the arbiter rather than Congress, the state legislature, the state supreme courts, the people being able to resolve this?” Kavanaugh said, noting that without a nationwide standard, states like New York and California would continue to protect abortion, while other states would not.

If the court overturns Roe or weakens it, 26 states would likely try to prohibit abortion, according to the Guttmacher Institute, an abortion rights research and advocacy group that tracks state legislation. As of Nov. 1, 22 states already have laws in place that they could use to enforce abortion bans. Of those, 12 have passed so-called trigger bans that are designed to take effect immediately or through quick state action if Roe is overturned, according to the institute.

Prelogar emphasized that the court precedents recognized that the right to abortion is “a fundamental right of women” and because of that, it is not up to the states to decide whether to protect that right or not. Pregnant people who have the means to travel out of state for care could still access abortion. However, those without resources would be forced to sustain their pregnancies and have a child or seek out illegal, and potentially unsafe, abortions, Prelogar said.

In a media briefing following the hearing, representatives for the Center for Reproductive Rights and the Mississippi clinic said they felt energized by the arguments, despite the conservative justices’ apparent willingness to do away with the viability threshold.

“We will not stop fighting, because it is just too important for people and their families to be able to make this decision for themselves,” Rikelman said. “I think we were able to powerfully present those arguments, and right now it's in the court’s hands.”

Zoe Tillman contributed reporting to this story.

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