U.S. Supreme Court

Supreme Court appears ready to uphold ban on abortions after 15 weeks

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The six conservative justices on the U.S. Supreme Court appeared ready Wednesday to end the viability dividing line for abortion rights.

During oral arguments Wednesday, the high court appeared ready to uphold a Mississippi law that bans abortions after 15 weeks of pregnancy, report the New York Times, the Washington Post, Bloomberg Law, Law.com and Reuters.

The Mississippi law prohibits doctors from performing abortions after more than 15 weeks of pregnancy, with exceptions to save the life of the woman or to prevent “serious risk of substantial and irreversible impairment of a major bodily function,” Law.com explains. Another exception allows later abortions for a “severe fetal abnormality” that is incompatible with life outside the womb.

The Supreme Court upheld Roe v. Wade in the 1992 decision Planned Parenthood v. Casey, which held that states can’t prohibit abortion before viability. The decision allowed states to regulate pre-viability abortions, however, if it didn’t place an undue burden on abortion access.

The justices seemed divided Wednesday on whether to set 15 weeks as the dividing line or whether to overturn Roe entirely, according to the New York Times.

abortion words and gavel Related article from ABAJournal.com: “ABA urges Supreme Court to rule US can sue to block unconstitutional Texas abortion law”

Chief Justice John G. Roberts Jr. appeared willing to uphold the Mississippi law without overruling Roe. He said the 15-week dividing line was not a “dramatic departure” from the viability standard.

But Justice Samuel A. Alito Jr. said the court’s only real options are to overturn Roe or overrule it.

According to the New York Times, it’s unclear whether Roberts will be able to attract enough conservatives to his narrower approach.

“Assuming the three most conservative members of the court—Justices Alito, Clarence Thomas and Neil M. Gorsuch—are prepared to overrule Roe entirely, Chief Justice Roberts would need to attract at least two votes for a narrower opinion, one upholding the Mississippi law but not overruling Roe in so many words, to be controlling,” the New York Times reports. “But the most likely candidates, Justices Brett M. Kavanaugh and Amy Coney Barrett, said little to suggest that they were inclined toward that narrower approach.”

The Washington Post said Kavanaugh “gave abortion rights supporters little to cheer in his comments and questions.” Kavanaugh referred to several cases in which the court overturned long-held precedents and said the best option might be for the court to be “scrupulously neutral” on the abortion issue. That would return abortion decisions to the states.

“The Constitution is neither pro-life nor pro-choice … but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process,” Kavanaugh said.

Liberal justices stressed the importance of precedent. Justice Sonia Sotomayor noted that Mississippi lawmakers said they passed more abortion restrictions because of changes in the makeup of the Supreme Court.

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

See also:

ABAJournal.com: “Supreme Court should uphold precedent in Mississippi abortion case, ABA amicus brief says”

ABAJournal.com: “In challenge to Roe v. Wade, Supreme Court will consider ban on abortions before viability”

ABAJournal.com: “Supreme Court will hear Texas abortion case on expedited basis but refuses again to block the law”

ABAJournal.com: “Abortion opponents cite Justice Ginsburg in arguments to overturn Roe v. Wade”

ABAJournal.com: “Mississippi asks Supreme Court to overturn Roe v. Wade in pending challenge to abortion law”

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