Just weeks after hearing challenges to a restrictive abortion law in Texas, the Supreme Court is taking up the issue again in an all-or-nothing battle that could reshape the battle over a woman’s right to choose for years to come.
The high court on Wednesday heard arguments in Dobbs v. Jackson Women's Health Organization, a case that calls into question the constitutionality of a 2018 state law that bans all abortions after 15 weeks of pregnancy in Mississippi, well before fetal viability.
The case, the most significant challenge to the right to an abortion in three decades, directly asks the court to overturn the landmark 1973 decision in Roe v. Wade and the 1992 decision in Planned Parenthood v. Casey.
Conservative justices, including Chief Justice John Roberts, Samuel Alito and Brett Kavanaugh, seemed to suggest changes may be coming to the long-standing precedent surrounding abortion.
Mississippi Solicitor General Scott Stewart opened his arguments Wednesday by saying that the decisions on abortion "haunt our country" and "have no basis in the Constitution," claiming they have "damaged the democratic process" and "poison the law."
Julie Rikelman, the attorney representing the state's lone abortion provider, said that upholding the Mississippi law would cause "profound damage to women’s liberty, equality and the rule of law."
Justice Stephen Breyer, one of the court's liberal members, brought up stare decisis, the the principle of adhering to past precedent, and argued that "to re-examine a watershed" decision like Roe "would subvert the court’s legitimacy."
Breyer said that the Supreme Court should not "overrule under fire" past precedent and should overturn previous decisions only if they're "grounded in principle, and not social pressure [or] political pressure."
"To overrule under fire in the absence of the most compelling reason to examine a watershed decision would subvert the court’s legitimacy beyond any serious question," he said.
Justice Sonia Sotomayor, a liberal justice appointed by President Barack Obama, agreed with Breyer's argument on stare decisis, noting that more than a dozen justices "of varying political backgrounds" over 30 years have reaffirmed viability precedent set forth in Roe and Casey.
"The right of a woman to choose, the right to control her own body, has been clearly set forth since Casey and never challenged," she said. "You want us to reject that line of viability and adopt something different."
"Will this institution survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts?" she asked. "I don’t see how it is possible."
Sotomayor asked Stewart how the state's interest in overturning Roe and Casey is "anything but a religious view."
"The issue of when life begins has been hotly debated by philosophers since the beginning of time," Sotomayor continued. "It’s still debated in religions. So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it? When does the life of the women and putting her at risk, enter the calculus?”
She also took issue with Stewart's argument that abortion decisions are not based in the Constitution, saying that a number of other key decisions – including the rights to birth control and gay marriage, as well as the decision in Marbury v. Madison which established judicial review in the first place – are not there either.
"I fear none of those things are written in the Constitution," she said. "They have all, like Marbury v. Madison, been discerned from the nature of the Constitution."
Stewart said that unlike those other decisions, Roe and Casey deal with "the purposeful termination of human life."
Conservative Justice Clarence Thomas, the only member of the high court who has openly called for the decisions in Roe and Casey to be overturned, posed the first question of the day, asking how the court should handle viability if it does not overturn Roe and Casey.
Thomas asked Rikelman what constitutional right protects abortion: "Is it privacy? Autonomy? What would it be?"
"It’s liberty," she replied. "It’s the textual protection in the 14th Amendment that the state can’t deny someone liberty without the due process of law."
Justice Brett Kavanaugh, an appointee of former President Donald Trump, presented Stewart a line of questioning involving hypotheticals about what would happen if Roe was overturned and decisions on abortion returned to the states.
"As I understand it, you’re arguing that the Constitution is silent and therefore neutral on the question of abortion," he said. "In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion, but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process. Is that accurate?"
Stewart responded affirmatively, but said that some states would still allow abortion if Mississippi won its case.
Chief Justice John Roberts, a pivotal swing vote on the issue, asked "why is 15 weeks not enough time" to get an abortion, saying it is in line with "standard that the vast majority of other countries have."
Rikelman disagreed, saying countries like Canada and the U.K. permit abortions up to viability, roughly around 22-24 weeks: "It’s cutting the time period to obtain an abortion roughly in half."
On the subject of viability, Justice Samuel Alito said that the line is "arbitrary" and "doesn't make any sense."
"If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed," he said, adding: “The fetus has an interest in having a life, and that doesn’t change from the point before viability and after viability.”
"Viability is a principled line, your honor," Rikelman replied, adding that the viability line is "objectively verifiable" and does not force the court to answer philosophical questions.
“There are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics,” Alito rebutted. “But viability is dependent on medical technology and medical practice. It has changed. It may continue to change.”
Rikelman replied by saying that the high court established "a line between conception and birth and it logically looked at the fetuses ability to survive separately as a legal line."
She went on to rebut Alito by saying that "allowing a state to take control of a woman’s body" and forcing her to continue an unwanted pregnancy "is a fundamental violation of her liberty.”
Kavanaugh listed a number of instances in which the Supreme Court overturned its own cases – including the landmark Brown v. Board of Education, the 1954 decision which said that that racial segregation in public schools violated the 14th Amendment – and said that "the country would be a much different place" if they had observed stare decisis and not intervened.
"If we think that the prior precedents are seriously wrong – if that – why then doesn't the history of this court’s practice [suggest] that the right answer is to return to the position of neutrality?" he asked.
"The view that a precedent is wrong has never been enough to overrule that precedent," Rikelman replied, saying it requires a "special justification," which Mississippi has not provided.
"There is no less need today," she said, "for women to be able to make this fundamental decision for themselves about their bodies, their lives, and their health.
U.S. Solicitor General Elizabeth Prelogar, arguing on behalf of the Biden administration, argued that "the real world effects of overruling Roe and Casey would be severe and swift," saying that a number of states would enact restrictive abortion bans in their wake.
According to an analysis from the Guttmacher Institute, a advocacy group supporting abortion rights, overturning or weakening Roe v. Wade would likely lead to 26 states banning abortions.
Prelogar urged the justices to uphold the long-standing precedent, saying people have relied on abortion rights for decades.
"Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest," she said. "Women who are unable to travel hundreds of miles to gain access to legal abortion will be required to continue with their pregnancies and give birth with profound effects on their bodies, their health and the course of their lives."
"If this court renounces the liberty interest recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis," she continued. "The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society."
A decision in the case is not expected until spring. Despite that, protesters gathered outside of the Supreme Court on Wednesday – on both sides of the argument – to make their voices heard.
A district court ruled in November of 2018 that Mississippi had “no legitimate state interest strong enough, prior to viability, to justify a ban on abortions” — and a year later, an appeals court upheld the lower court’s ruling.
“States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions,” U.S. Appeals Court Judge Patrick Higginbotham wrote in the ruling in Nov. 2019. “The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law.”
But that could all change with a Supreme Court featuring a 6-3 conservative majority, after former President Donald Trump appointed three justices to the bench during his single term in the White House, radically overhauling the institution.
President Joe Biden said that he continues to "support Roe v. Wade" though he mentioned he did not see any of the Supreme Court arguments Wednesday.
"I think it’s the rational position to take, and I continue to support it," he added.
"The president believes ... that the Mississippi law blatantly violates women’s constitutional rights to safe and legal abortions," White House press secretary Jen Psaki said later Wednesday. "This case presents a grave threat to women's fundamental rights, to all of our rights, as protected under Roe v. Wade for nearly half a century."
"Every American deserves access to health care, including reproductive health care, and the president is deeply committed to the consitutional right," she continued, adding that Biden is "committed to working with Congress to codify the right to safe and legal abortion," including urging Congress to pass the Women's Health Protection Act.
The bill, which passed the House in September, would codify protections to abortion rights.
Psaki also applauded Prelogar's defense of Roe v. Wade during the hearing Wednesday morning, and said that Biden will be updated and briefed on the arguments.
Weeks ago, the justices heard arguments in challenges Texas’ controversial abortion law, which bans most abortions at six weeks, before some women even know they are pregnant, and relies on lawsuits from private citizens to enforce the measure.
The Supreme Court allowed it to go into effect in a 5-4 decision, without ruling on its constitutionality. Challenges to that law mainly question the law’s unusual structure and how it can be disputed in court.
Meanwhile, public polling suggests that Americans strongly support abortion rights and preserving the decision in Roe v. Wade.
Sixty percent of adults in the U.S. support the Supreme Court court upholding the landmark 1973 decision, with just 27% believing the court should overturn it, according to a recent ABC News-Washington Post poll.
The poll also found that 65% of those surveyed say the Supreme Court should overturn Texas’ abortion law, compared to just 29% who say it should be upheld.
Fifty-eight percent of respondents also opposed state legislation which makes it harder for abortion clinics to operate, which comes weeks after the high court heard arguments in cases related to Texas’ restrictive abortion law. Forty-five percent of those who responded oppose them “strongly.”
The poll also finds that Americans believe by a wide margin, 75-20, that decisions on abortions should be made by a woman and their doctor, rather than be regulated by law.
The Associated Press contributed to this report.