Terry H. Schwadron
Nov. 30, 2021
The showdown over abortion rights comes before the U.S. Supreme Court tomorrow amid concerns over the conservative changes in the lineup of court justices — a few of whom have gone out of their way to speak publicly about how we should not be viewing the Court as a political institution.
With live audio links available on several news websites, you can judge for yourself whether the questions show a lean on how the justices view a review of a Mississippi law restricting abortion at 15 weeks. In its filings, Mississippi has made the constitutional legs for abortion explicit, asking the Court to block legal abortion altogether.
As the Associated Press presents it, both sides are telling the Supreme Court there’s no middle ground, that the justices can either reaffirm the constitutional right to an abortion or wipe it away altogether.
Abortion, legal through 24 weeks since the 1973 Roe v. Wade ruling and preserved through narrowed judicial reasoning in a case called Casey, is under its most serious attack before a court that has become a 6–3 conservative majority. As Washington Post columnist Ruth Marcus put it, we’re starting to see the “rule of six” in decisions that fundamentally alter practices from abortion to guns to religion and politics.
Though the case involves one state, the practical effect will be an immediate echo among 26 anti-abortion state legislatures, according to the Guttmacher Institute, a research organization that supports abortion rights. Ten states have “trigger” laws ready to take effect upon a change in Roe. Almost simultaneously, the Court is going to rule on a yet more restrictive Texas abortion law that put anyone who performs or aids an abortion, from a doctor to a taxi driver, in risk of financial ruin through lawsuit.
At this point, there is only one abortion clinic in Mississippi, the Jackson Women’s Health Organization. The clinic offers abortions up to 16 weeks of pregnancy and about 10% of abortions it performs take place after the 15th week. Since the Texas law took effect in September, the clinic has seen a substantial increase in out-of-state patients, operating five days or six days a week instead of two or three.
Just this week, The New York Times told the story of complications for patients in Texas who face excruciating personal decisions over medically risky pregnancies under the new law under review there.
An informational podcast on the public health stakes of the pending decision, including statistics about restrictive abortion laws on maternal health and child well-being, is here.
What brings the case to the Supreme Court are lower court rulings that found them at odds with Roe.
As the AP noted, the Supreme Court had never even agreed to hear a case over a pre-viability abortion ban. But after Justice Ruth Bader Ginsburg’s death last year and her replacement by Justice Amy Coney Barrett, the third of Trump’s appointees, the court said it would take up the case.
Among the justices, Clarence Thomas has spent every chance since 1991 arguing that Roe should be discarded. “The power of a woman to abort her unborn child” is not a liberty protected by the Constitution, said a dissenting opinion from four members of the court, including Thomas. With Donald Trump moving to add three judges whom he insisted were anti-abortion, the moment for a potential historic culture change has arrived.
Cultural and Legal Collisions
The case is drawing dozens of briefs from lawyers representing both sides, with references to state-federal rights to decide such matters, outward morality decisions, women’s independence and legal reasoning.
In 1973, the Supreme Court decided 7–2 that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a “right to privacy” that protects a pregnant woman’s right to choose whether or not to have an abortion, but limited the right to the first two trimesters, a standard targeted since. But conservatives have argued that legal reasoning to be in error, even as liberals have sought to defend abortion under equality rulings.
As always, the Court may try to narrow the questions, the preferred approach of Chief Justice John Roberts Jr. But in this case, the arguments from the briefs and the state make clear that they want an all-or-nothing ruling.
One side sees moving the restriction to 15 weeks, or pre-viability, as erasing the legal rationale for allowing Roe. The other argue that the Court essentially invented abortion law in Roe and Casey.
In any case, the only things that have changed here in all these years are the makeup of the Court and our vast, national political divide.
The outcome of this case says either that precedent doesn’t matter, and a conservative Court can declare anything it wants as legal or not, or that we need a new set of legal reasoning by which to judge cultural practices. This is a question about politics and morality, not medicine or even social policy.
Abortions are on the decline in the United States, though poll after poll have found support for legal abortion. Legal abortion is on the rise worldwide. Abortion clinics often are also the only women’s medical services units in some states.
This is a question about what kind of country we want to be — as decided by five votes.