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Supreme Court indicates it could eliminate a core element of Roe v. Wade

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A majority of justices seems likely to uphold Mississippi’s 15-week abortion ban. It would represent a major weakening of the landmark 1973 case.

By Shefali Luthra

Originally published by The 19th

In what may be the biggest challenge to abortion rights since 1973, the Supreme Court appeared starkly divided on whether to uphold the protections guaranteed by Roe v. Wade, the landmark ruling that enshrined the right to an abortion. 

But during oral arguments Wednesday, a majority of justices seemed likely to emerge in favor of eliminating one of the case’s core protections: the holding that the constitution guarantees the right to an abortion up until a fetus can live independently outside the womb. This stage, known as “fetal viability,” typically occurs around 24 weeks of pregnancy.

Dobbs v. Jackson Women’s Health Organization — one of the highest profile before the court this term — nominally examines a law from Mississippi that would ban almost all abortions after 15 weeks of pregnancy, with no exceptions for cases of rape or incest. But Mississippi used its arguments to suggest that the court should reverse Roe v. Wade in its entirety, letting individual states decide whether to allow abortion or not. 

And upholding the state’s 15-week abortion ban would necessarily require eliminating Roe v. Wade’s “viability line” — arguably the core holding of the case, and the standard for which abortion rights are protected in the United States. The viability standard was reaffirmed in 1992’s Planned Parenthood v. Casey, which allowed states to pass laws regulation previability abortions so long as they did not impose an “undue burden” on someone seeking an abortion. 

The court’s three liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — indicated they were skeptical that the Mississippi law should be upheld.

“You come here very honestly, saying, ‘We want you to discard the entire setup,’” Kagan said to Mississippi Solicitor General Scott Stewart. “Usually there has to be a justification — a strong justification — in a case like this, beyond the fact that you think the case is wrong. What strikes me when I look at this case, is that not much has changed since Roe and Casey.”

But the court’s other six justices indicated openness to a decision that would weaken Roe v. Wade but not overturn it entirely. That could either mean allowing states to ban abortions after 15 weeks — a possibility floated by Chief Justice John Roberts — or allowing individual states to determine on their own what abortion restrictions are permissible, as long as they did not violate the undue burden standard.

Justice Amy Coney Barrett, whose legal scholarship has long suggested a willingness to revisit Roe v. Wade, pointed to laws that allow people to terminate parental rights, and suggested that unintended pregnancy is no longer a great barrier for people, and in particular for women seeking economic opportunity, because they can turn to adoption services instead. 

“Both Roe and Casey emphasize the burdens of parenting, and insofar as you and many of your [supporting briefs] focus on the ways in which  forced parenting — forced motherhood —would hinder women’s access to the workplace and to equal opportunities,” Barrett said. 

“However, it doesn’t seem to me to follow that pregnancy, and parenthood are all part of the same burden,” she added.

Julie Rikelman, a lawyer for Jackson Women’s Health, noted that adoption resources existed before Roe v. Wade was decided as well, and argued that both the physical state of unintended pregnancy and the consequence of unplanned parenthood can be detrimental. 

“We don’t just focus on the burdens of parenting, and neither did Roe and Casey,” she said.

Research has shown that being denied an abortion is linked to higher rates of poverty, unemployment, bankruptcy and eviction.

Justice Brett Kavanaugh, who has this term been considered one of the court’s swing votes, indicated openness to overturning Roe v. Wade entirely and allowing individual states to ban abortion.

“Why should this court be the arbiter rather than Congress, the state legislatures, the state supreme courts? The people being able to resolve this,” he said. “There’ll be different answers in Mississippi and New York, different answers in Alabama and California, because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”

A decision in the case is not expected until the end of the court’s term, in or near the summer of 2022. 

According to the Kaiser Family Foundation, 18 states have laws on the books that would prohibit abortions if Roe v. Wade was to be undone. And an analysis by the Guttmacher Institute, which tracks reproductive health policy, suggests that people seeking abortions from those states would have to travel hundreds of miles for care — overwhelming the networks of abortion clinics in states like California, Illinois and Kansas.

Even if the court does not overturn the 1973 case, a decision upholding the Mississippi law would give states a legal framework to restrict abortion access far more than they currently do. That could mean allowing bans at 15 weeks — currently considered unconstitutional — or earlier to take effect. 

Many legal analysts also believe such a ruling would encourage states to pass laws that banning abortion earlier and earlier in pregnancy, as a sort of test to see how early the court may let them go. 

Kagan suggested such a system would be unworkable.

“’I’m just thinking about the great variety of different regulations that states could pass — whether one is 15 weeks, one is 12 weeks and one is 9 weeks or a variation,” Kagan said. “How would you counsel us to deal with that, if the court were to go down that road?”

The court’s justices were also split on what the implications of such a ruling would mean for other major court-protected rights that are not explicitly mentioned in the Constitution, but that are predicated on similar interpretations as Roe v. Wade. Those include the right to LGBTQ+ marriage, for instance, the constitutional protection for sexual intercourse between people of the same sex, or the right to use contraception.

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