U.S. Supreme Court

Conservative SCOTUS justices question abortion decisions but delay action on Mississippi's viability cert petition

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Five conservative U.S. Supreme Court justices have questioned abortion precedent in their decisions, but it’s unclear how far they would go to undermine or overrule Roe v. Wade.

The justices appear in no hurry to consider the questions. For nearly six months, the high court has delayed a decision on a cert petition in a constitutional challenge to Mississippi’s ban on abortions after 15 weeks of pregnancy, CNN reports. The 15-week ban would not apply in the case of a medical emergency or a severe fetal abnormality.

The court took no action on the cert petition in the case Monday, according to the National Review.

Mississippi’s attorney general is urging the Supreme Court to accept the case to consider three issues.

First, the court should eliminate the viability standard for evaluating abortion restrictions, Mississippi’s attorney general says.

Second, the court should clarify the standard for evaluating abortion restrictions, according to the cert petition.

Third, the justices should rule that abortion clinics don’t have standing to file lawsuits on behalf of women, the cert petition argues.

The case is Dobbs v. Jackson Women’s Health Organization.

CNN outlines positions already taken by conservative justices:

• Justice Clarence Thomas has argued that Roe v. Wade is “grievously wrong,” mostly importantly because there is no support for the idea that the Constitution protects a right to abortion. He has also argued that abortion has been used “to achieve eugenic goals” to eliminate those deemed unfit by society. CNN says Thomas is the court’s “most consistent critic of abortion-rights rulings.”

• Justice Samuel A. Alito Jr. has argued that giving standing to abortion clinics to assert the rights of women creates conflicts of interest. His argument was joined by Thomas and Justice Neil M. Gorsuch.

• Gorsuch has said state lawmakers are owed more deference by the Supreme Court. He also said a balancing test used to evaluate abortion restrictions, used in the 2016 decision in Whole Woman’s Health v. Hellerstedt, is “little more than the judicial version of a hunter’s stew: Throw in anything that looks interesting, stir, and season to taste.”

• Chief Justice John G. Roberts Jr. has said he rejects the Whole Woman’s Health balancing test used to evaluate abortion restrictions.

• Justice Brett M. Kavanaugh has also questioned the balancing test.

Justice Amy Coney Barrett, the court’s newest justice, declined to state her views on abortion issues during her confirmation hearing in fall 2020.

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