Undercutting Abortion Rights
Terry H. Schwadron
Dec. 2, 2021
The question all along for the Supreme Court had been whether the justices, now tilted towards conservative interpretations of the issues, are even interested in threading any needles about abortion or whether they would simply overturn 50 years of precedent since Roe v. Wade.
Yesterday’s Court hearing about the Mississippi law to limit legal time for abortion to 15 weeks, creating a new standard for fetus viability, left some clues that they were looking at arguments short of overturning Roe, though perhaps upholding the Mississippi law, and that at least a few judges were uncomfortable making a decision in this case. Liberal justices tended to challenge the anti-abortion arguments, and conservatives the opposing case.
Whatever else one might want to say, it’s a pretty weird process to determine basic American rights. Any decision will take time, and the Court also must address a still pending even-more limiting law in Texas with its vigilante enforcement rules.
Anti-abortion advocates have made the case, Dobbs v. Jackson Women’s Health Organization, the only clinic still functioning in the state, into an out-and-out rejection of Roe, decided in 1973, and of Planned Parenthood v. Casey, in 1992, which added a bar against “undue burden” on patients. The only difference between then and now is a change in the political lineage of the Court itself, to a 6–3 conservative tilt.
What we could hear via live audio was an asymmetrical debate between legal restraint to recognize precedent against a moral argument, buttressed with both law and sociology, that the time has come to eliminate women’s rights over a contentious issue that consistently polls in the opposite direction nationally.
Chief Justice John G. Roberts Jr. has always pushed the Court to narrow its decisions, meaning an outcome that might chip away at abortion rights without outright rejection of Roe. But in doing so, the Court is setting up the case for elimination of rights, and just how they do so legally could put other rights deriving from the equal protection clauses of the Constitution that relate to social conventions in danger.
Whatever the final legal language of a decision, the emotional and political fallout is going to be a greater gauge of our perceptions of national values. The notion that five or six judges, particularly these conservative justices, will decide our rights doesn’t sit particularly well with any group.
Viability. Among other things, the Roe and Casey decisions established the concept of viability as a legal line, with science providing a two-trimester or 24-week time limit. What the Dobbs case seeks at minimum is a reset of viability, to 15 weeks or in Texas to six weeks. Justice Sonia Sotomayor questioned the argument that science has changed in some fundamental way since the prior decisions; Justice Samuel Alito asked about bioethicists who believe life starts at conception, and pressed abortion arguments that rely on a specific viability date. Justice Roberts noted that the Court agreed to hear the case based on the viability question and probed why 15 weeks was substantially different from 24.
To uphold Mississippi’s law, the Court must either hold that there is no abortion right or rewrite what viability means, effectively removing any kind of barrier to how early a state may ban abortion. Viability has received criticism in dissents from past Supreme Court decisions, which have judged all pre-viability bans as unconstitutional, and from bioethicists. The court could proclaim that viability is not part of Roe’s “essential holding.”
Following precedents. From the start, Justice Stephen Breyer took the strongest role throughout in asking Mississippi Solicitor General Scott Stewart why the Court should not be bound by precedent, to which Stewart said when the Court finds the precedent wrong. Breyer followed in other questions about just how to determine such “super cases” with strong popular followings. Alito’s questions were towards justifying overturn of prior decisions asking how courts might have acted in 1864, almost without regard to individual rights at all. Justice Sotomayor asked about the Mississippi legislators justifying its bill by saying there are new conservative justices in place. Julie Rickelman of the Center of Reproductive Rights, arguing against the Mississippi law, underscored that the Court has recognized viability for 50 years.
In effect, it was an argument about the proper role of the Court itself.
States’ rights also arose as frequently as individual rights, as did the question of whether abortion is subject for courts or best left to legislatures. Justice Brett Kavanaugh asked about some states allowing or disallowing abortions as a possible outcome and pushed back about the Court finding itself pressed by opposing popular sides to come up with an approach to rights not included in writing in the Constitution.
Fetal Rights. Some anti-abortion briefs asked the Court to identify a fetus as a rights-holding person under the 14th Amendment. That would make abortion unconstitutional everywhere, including in states that have supported abortion rights. Doing so doesn’t square with a pro-states’ rights notion, and drew no specific questions.
Among the arguments were non-legal claims about the status of women in our American society, as well as some debate about scientific research, promoted by attorney Rickelman. Justice Amy Coney Barrett asked why women couldn’t still give up children to adoption or “safe havens.”
As explained by The New York Times, supporters of ending abortion argued in briefs that that the right to an abortion is no longer necessary because it has become much easier for women to combine work and family. Over 50 years, “women have carved their own ways to achieving a better balance for success in their professional and personal lives,” according to Mississippi Atty. Gen. Lynn Fitch, apparently to rebut language from Casey.
Those arguments drew countering briefs from abortion opponents who noted that studies of abortion effects disprove the assertions of workplace equality.
Questioning the practicalities of enforcing “undue burden” thinking on how states might regulate abortion suggested that the Court was looking at possible middle grounds despite the all-or-nothing arguments presented by the lawyers.
It was a fascinating — if rather disembodied from real people’s experiences — debate about our rights, our decision-making, and the need for specificity in rulings, if often nervous-making.