The Court Battle Over Abortion

Terry H. Schwadron

July 24, 2021

Well, it’s out in the open.

After all those cases that push here and squeeze there, hoping against hope that the U.S. Supreme Court will find a way to interpret an arbitrary time limit or a state hospital regulation to cut away at abortion rights, Mississippi Atty Gen. Lynn Fitch has finally said it outright in the state’s court arguments: The Supreme Court should overturn Roe v. Wade.

Of course, the Court should not do so. But for once, at least the issue is finally framed as what all these other cases have been merely suggesting.

The case, due for hearing in the fall on the state’s 15-week legislative limit on abortions, is one that “both sides in the divisive fight see as a crucial moment in determining whether and how the court’s 6-to-3 conservative majority might constrain abortion rights,” as The Washington Post noted.

Fitch said in the filing that the court should abandon its 1973 ruling in Roe and a subsequent 1992 endorsement of abortion rights in Planned Parenthood v. Casey. That decision said states may not place an undue burden on a woman’s right to choose an abortion before fetal viability, which is generally thought to be after 24 weeks or later. “Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law — and, in doing so, harmed this Court,” the brief says.

The problem, of course, is that the Court has now ruled multiple times around that central claim, dealing with the how-to type rules, but upholding the basic principle that abortion is lawful as its precedent.

Activism in the Court

These Supreme Court judges swear up and down at confirmation hearings that they will abide by precedent. Further, the conservative nominees as justices have railed against “activist” judges who supersede precedent and create new law.

Abortion has been legal for 50 years despite all those state efforts to repeal it. To overturn it now would be an “activist” re-interpretation. But for conservatives, the fact that the Court has ruled on legality many times seems merely an inconvenience, a wrong-headed set of interpretations.

Moreover, the right to abortion has also been framed as an ultimate expression of personal liberty over a mandate of the state — exactly the same kind of argument that conservatives across the country are using about vaccines, mask-wearing rules and lockdowns in the face of a public health pandemic.

“Nothing in constitutional text, structure, history, or tradition supports a right to abortion,” the brief states. And thus states should be free even to ban elective abortions so long as they show the prohibition promotes a legitimate government interest, Mississippi argues.

The brief dismisses the argument that reproductive control is essential to what Justice Ruth Bader Ginsburg once called “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
The justices reportedly deliberated privately for months on whether to review the Mississippi law, which lower courts have not allowed to take effect. The Court announced in May it was accepting the case to decide “whether all pre-viability prohibitions on elective abortions are unconstitutional.”

Last term, the court struck down a Louisiana law that targeted abortion clinics on a 5-to-4 vote, with Chief Justice John G. Roberts Jr. siding with the court’s liberals. It was the first time the chief justice had struck an abortion restriction, but Roberts said his vote was only to honor precedent — the court just several years earlier struck down a nearly identical Texas law.

Politics Everywhere

Skip all the legalisms and what you see here is the basic raw political grab for control of the national cultural helm.

In a news release Thursday, Fitch said that “it is time for the Court to set this right and return this political debate to the political branches of government.”

In fact, abortions are down nationwide, in part because of varying state rules limiting access, and in part because of the accessibility of birth control and insurance coverage that covers costs for them.

Should the Court overturn Roe and give states the go-ahead to make their own rules, half the states with Republican legislative majorities will eliminate abortion virtually overnight. This is about party politics as much as it is about any fundamental argument about basic human rights.

And we should recognize that justices of the Court increasingly are functionaries of the political parties that nominate them. Indeed, the biggest surprise of the last several weeks has been criticism of the Court by Donald Trump and a recent evangelical convention because the current crop of conservative justices are not seen as conservative enough in their rulings.

We should not pre-judge the case. But we can ask justices to act in a way that preserves precedent or eliminate any myth of fairness about who is named to the Court.


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