WASHINGTON – A majority of the Supreme Court signaled Wednesday it is open to upholding Mississippi’s ban on most abortions after 15 weeks of pregnancy but left unresolved the question of how far it may go to undermine its landmark Roe v. Wade decision.
In nearly two hours of debate, the justices wrestled with the potential impact of overturning Roe on people seeking an abortion, as well as how a heavily divided nation might perceive the Supreme Court if it abandons the watershed ruling from 1973 that established a constitutional right to the procedure.
Each of the six conservative justices asked questions that suggested at least some skepticism with the position taken by abortion rights groups – and the Biden administration – that allowing Mississippi's ban would not only violate the Constitution but also raise questions about the court's neutral interpretation of the law.
"If it really is an issue about choice, why is 15 weeks not enough time?" Chief Justice John Roberts asked.
Associate Justice Brett Kavanaugh, at the center of the court, reached to history to run through a list of decisions in which the high court had overturned its precedents: nullifying school segregation, for instance, and the blockbuster case that legalized same-sex marriage across the nation in 2015.
"If we think that the prior precedents are seriously wrong – if that – why, then, doesn’t the history of this court's practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality?" Kavanaugh pressed.
"Why should this court be the arbiter rather than Congress?" he asked.
Kavanaugh's assertion underscored the difficulty of the case, arguably the most important challenge in a generation to Roe and reproductive rights as they are understood.
The Mississippi case, along with a Texas ban on abortions after six weeks of pregnancy that is also pending before the Supreme Court, pushed the issue back to the forefront of the nation's culture wars. The oral arguments Wednesday drew thousands to the courthouse in Washington, including several members of Congress.
Protesters spilled out onto the street between the high court and the U.S. Capitol, shouting and waving signs proclaiming "Abortion is healthcare" or “Life is a human right.”
Abortion rights advocates say allowing the state's 15-week ban to take effect would, in practice, overturn Roe by wiping away one of its central holdings: that people have a right to an abortion until viability, the point when a fetus can survive outside the womb or about 24 weeks into a pregnancy.
The court's liberals, led by Associate Justices Stephen Breyer and Sonia Sotomayor, quizzed Mississippi's attorney on the implications of overturning one of the court's most widely recognized precedents. The Supreme Court should move cautiously with such a decision, they said, to avoid the appearance of politics.
"Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" Sotomayor asked.
The Supreme Court, where conservatives hold a 6-3 advantage for the first time in decades, surprised observers by agreeing to hear the case at all. Similar bans have been struck down without intervention from the nation’s highest court. The decision to take the case signals that at least some of the justices want to say something about the issue.
As president, Donald Trump vowed to put the court on a path to "automatically" overturn Roe. He nominated three conservative justices who have at least hinted at their displeasure with the decision. Much of the focus during Wednesday’s arguments rested on two of them: Kavanaugh and Associate Justice Amy Coney Barrett.
Barrett questioned whether overturning Roe would open the possibility of rethinking other Supreme Court precedents, including a landmark 1965 case that permitted married couples to use contraception. She asked whether state safe-haven laws that allow people to drop off unwanted infants at a hospital or other public facility relieved the demands of parenthood raised by abortion rights groups.
Anti-abortion groups argue Roe should be overturned because abortion isn't explicitly included as a right in the Constitution. The Roe decision and subsequent rulings "haunt our country," Scott Stewart, Mississippi's solicitor general, told the court.
"They have no basis in the Constitution," he said.
Sotomayor shot back that the court has recognized many rights that aren't explicitly included in the text of the nation's founding document.
"There’s so much that’s not in the Constitution," she said, "including the fact that we have the last word."
Jackson Women’s Health Organization, the last abortion clinic in Mississippi, challenged the law in 2018, asserting it conflicted with Roe and a subsequent case in 1992 that upheld Roe but ruled people can obtain an abortion until viability. Two lower federal courts agreed with that position, and Mississippi appealed to the Supreme Court.
The high court's decision, likely to be handed down early next summer, will have ramifications beyond Mississippi: Dozens of conservative states are poised to approve similar bans. At least 17 states enacted "trigger bans" or have pre-Roe abortion bans in place in the event the Supreme Court overturns the landmark ruling, according to the Guttmacher Institute, a research group that supports abortion rights.
Julie Rikelman, arguing on behalf of the Mississippi clinic, leaned heavily on the significance the court places on being bound by precedent. That argument was probably geared especially to Roberts, who has raised concerns about the impact overturning precedent has on the court as an institution that casts itself as apolitical.
Kavanaugh noted Wednesday that even if the states overturned Roe, many states would continue to permit abortions. In other words, some states would probably ban abortion completely, and others would permit the procedure.
"You’re arguing that the Constitution is silent and therefore neutral on the question of abortion," Kavanaugh asked Stewart.
"Right, we're saying it's left to the people," Stewart responded.
Polls show Americans are divided on the issue. Nearly two-thirds say the Supreme Court should uphold Roe, according to a Washington Post-ABC News poll. A Marquette Law School poll found a slim plurality, 37%, of Americans favor banning abortions after 15 weeks compared with 32% who would oppose that move.
"This is a moment we've been waiting for for more than 30 years," said Kristan Hawkins, president of Students for Life America and Students for Life Action, outside the court. "The willingness of the court to take up ... this Mississippi case means that they ... may be very ready to review and reverse the egregiously wrong decision that the court made in 1973."
Jacqueline Ayers, senior vice president at Planned Parenthood, disagreed.
“We’ve had decades of politicians trying to insert themselves ... to make decisions about people's bodies," she said. "They're out of step with the majority of people.”
Contributing: Matthew Brown
This article originally appeared on USA TODAY: Supreme Court signals support for Mississippi 15-week abortion ban