It appears the Supreme Court is going to uphold the Mississippi law that bans abortion 15 weeks into a pregnancy, long before the viability line set by prior precedent.
The law — that has no exception for rape or incest — was passed in 2018 but immediately blocked by two federal courts that held it was contrary to Roe.
Judge Carlton Reeves of the US District Court for the Southern District of Mississippi struck down the law and said the state legislature had chosen to pass something “it knew was unconstitutional to endorse a decades long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.” Reeves also concluded that the legislature’s “professed interest in women’s health is pure gaslighting.”
A federal appeals court also blocked the law, noting that it conflicted with Roe, which had been “affirmed, and reaffirmed.”
But with a 6-3 conservative majority, only the court’s liberals and the lawyers fighting the law made a case for keeping it intact.
Roberts floats a middle ground
Chief Justice John Roberts was quick to float a middle ground position that would uphold the Mississippi law but stop short of ending the right to abortion rights nationwide entirely.
He seemed to be suggesting that the court could move up the viability line to the 15 weeks in the Mississippi law and leave for another day whether the justices had to overturn Roe. “Why is 15 weeks not enough time?” to decide whether to get an abortion, he said. As for supporters of abortion rights, they have long said there would be no way to uphold the law without gutting Roe — even if the justices don’t say that part out loud.
It’s unclear if there are any justices interested in Roberts’ idea.
If the court does overturn Roe, people in large swaths of the South and the Midwest would be left without access to an abortion. The impact would be felt most by poor women who may be unable to travel or to get the necessary time off of work.
Trump’s nominees were sometimes hard to read
President Donald Trump, during his original White House campaign, prioritized judicial confirmations hoping to fill the courts with what he called “pro-life” judges. The very fact that the court agreed to hear this case showed that Trump’s emphasis on the courts paid off. The lingering question is whether Trump’s three nominees are ready to overturn Roe this term.
For his part Justice Brett Kavanaugh — who has not always revealed his true feelings at oral arguments — noted pointedly that if the Court were to overrule Roe, the issue would return to the states and a “majority” of them could continue to “freely allow abortion.”
At another point he told one lawyer in support of abortion that she was making a “forceful argument” but then shifted gears. He said if the issue was balancing the “interests of the pregnant woman and the interests of the fetus,” it might be better resolved by state courts or legislatures. He said that opponents of abortion think the court should be “scrupulously neutral.”
Liberals stress importance of precedent
All three liberals — Stephen Breyer, Sonia Sotomayor and Elena Kagan — looked almost pained during oral arguments at times.
Sotomayor was the most strenuous in defending precedent, especially towards the beginning of arguments when Mississippi’s solicitor general was at the lectern.
At one point she noted that “15 justices” in 50 years have voted to reaffirm the viability rule in court precedent. She suggested that the only thing that had changed was the composition of the 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.
Meanwhile, Texas’ 6-week ban remains in place
While this was the first time the justices discussed the Mississippi law while they were all together on the bench, they have been talking about abortion for weeks behind the scenes.
That’s because on September 1 they allowed Texas’ abortion law to go into effect that bans abortion at six weeks. They have since held expedited oral arguments on that case, but they have yet to issue an opinion. It’s even likely that they already know how this case is going to come out.
A ruling may not come until next summer.
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