WASHINGTON – Abortion already dominates the Supreme Court’s new tenure, months before judges decide whether to overturn decisions dating back nearly 50 years. Not only is the Mississippi call to quash Roe v. Wade, but the court will also soon be asked again to rule on Texas law banning abortion at around six weeks.
Judges won’t write about a pristine state as they contemplate the future of abortion rights in the United States. Only one, Clarence Thomas, has openly called for the annulment of Roe and Planned Parenthood v. Casey, the two cases that established and reaffirmed a woman’s right to abortion. Here is a sample of their comments:
Chief Justice John Roberts
Roberts voted to maintain the restrictions in two major abortion cases, mostly in 2007 to maintain the ban on an abortion method that opponents call “partial birth abortion” and in dissent in 2016 when the court overturned Texas restrictions on abortion clinics in a case called Whole Woman’s Health. But when a virtually identical Louisiana law was brought to court in 2020, Roberts voted against it and drafted the opinion controlling the outcome of the case and repealing the Louisiana law. The chief justice said he continued to believe that the 2016 case “was badly decided” but that the question was “whether to stick to it in deciding this case.”
Roberts’ take on when to break court precedent could determine how far he’s willing to go in the Mississippi case. At his confirmation hearing in 2005, he said that reversing the precedent “is a shock to the legal system”, which depends in part on stability and fairness. Thinking that a previous case was badly decided is not enough, he said. To reverse a case, one has to look at “those other factors, like set expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments,” he said. Roberts.
At the same hearing, Roberts was asked to explain his presence in a legal brief filed by the administration of George HW Bush that said Roe’s conclusion that there is a right to abortion has “no support in the world. the text, structure or history of the Constitution. ‘Roberts replied that the brief reflected the views of the administration.
Justice Clarence Thomas
Thomas voted to overthrow Roe in 1992, during his first term in court, while a dissenter in Planned Parenthood v. Casey. He has since repeatedly requested the cancellation of Roe and Casey.
In 2000, he wrote in dissent when the court overturned Nebraska’s ban on “partial birth abortion.” Recounting the court’s decision in Roe, he wrote: “In 1973, this Court struck down a law of the Texas legislature that had been in effect since 1857, thereby making abortion laws unconstitutional in dozens of states. . As some of my colleagues at the Court, past and present, have skillfully demonstrated, this decision was seriously flawed. Abortion is a one-time act, in which a woman’s exercise of control over her own body ends, depending on her perspective, human life or potential human life. Nothing in our Federal Constitution denies the people of this country the right to determine whether the consequences of abortion for the fetus and for society outweigh the burden of an unwanted pregnancy on the mother. Although a state can allow abortion, nothing in the Constitution requires it to do so. “
Judge Stephen Breyer
Breyer was the lead author of two judicial majorities in defense of the right to abortion, in 2000 and 2016. He never voted in favor of a restriction on abortion, but he acknowledged the controversy over abortion.
Millions of Americans “believe that an abortion is tantamount to causing the death of an innocent child”, while millions more “fear that an abortion law will condemn many American women to a lack of life. of dignity, ”he wrote in the Nebraska case. 21 years ago, calling these views “virtually irreconcilable”. Yet, Breyer wrote, because the Constitution guarantees “fundamental individual liberty” and must rule even when there are strong divisions in the country, “this Court, over the course of a generation, determined and then redetermined that the Constitution provides basic protection. the woman’s right to choose.
Judge Samuel Alito
Alito has a long history of voting and writing against the right to abortion, as a lawyer and, earlier, a government lawyer.
Alito voted to retain all abortion laws the court has considered since its confirmation in 2006, joining a majority to uphold the federal “partial birth” abortion law and dissenting in the 2016 cases and 2020.
As a federal appeals judge, he voted to maintain a series of abortion restrictions in Pennsylvania, including a requirement for a woman to notify her spouse before obtaining an abortion. The Supreme Court ultimately overturned the notification rule in Casey and reaffirmed the right to abortion in 1992 with a 5-4 vote.
Working for the Reagan administration in 1985, Alito wrote in a memo that the government should say publicly in an ongoing abortion case “we don’t agree with Roe v. Wade”. Around the same time, applying for a promotion, Alito said he was “particularly proud” of his work arguing “that the Constitution does not protect the right to abortion”.
Judge Sonia Sotomayor
Sotomayor joined the tribunal in 2009 with virtually no record on abortion issues, but has repeatedly voted for the right to abortion since then. Recently, when the court cleared the entry into force of Texas’ restrictive abortion law, Sotomayor accused his colleagues of “sticking their heads in the sand.” It was in the majority in cases of abortion clinics in Texas and Louisiana.
Sotomayor’s dissatisfaction with the recent Texas court ruling was evident in a recent virtual appearance she made. “I can’t change the law in Texas, but you can,” she said.
Judge Elena Kagan
Kagan has also voted for abortion rights several times in over 11 years as a judge. She is also arguably the most consistent voice in court, arguing for the importance of adhering to precedents and can be expected to try to persuade her colleagues not to give up constitutional protections for abortion. .
Kagan was in the majority when the court struck down Texas and Louisiana restrictions on abortion clinics. More recently, Kagan called Texas’ new abortion law “patently unconstitutional” and “a clear, and indeed unchallenged, conflict with Roe and Casey.”
Kagan had already looked into the issue of abortion before he became a judge. While working at the Clinton White House, she co-authored a memo that urged the president, for political reasons, to support a ban on late abortion proposed by Republicans in Congress, on condition that ‘it contains an exception for women’s health. . Ultimately, President George W. Bush signed a similar ban on late abortion with no health exceptions. The Supreme Court has confirmed it.
Judge Neil Gorsuch
Gorsuch may have the shortest abortion record among the nine judges. He was in the majority allowing the entry into force of the restrictive law of Texas on abortion. In dissent in 2020, he would have maintained restrictions on abortion clinics in Louisiana. As an appeals court judge before joining the Supreme Court in 2017, Gorsuch expressed his dissent when his colleagues refused to reconsider a ruling that barred then Utah Governor Gary Herbert from cut funding for the state branch of Planned Parenthood. But Gorsuch insisted during his Senate confirmation hearing that he was concerned about the procedural issues, not the topic. “I don’t care if it’s abortion or gadgets or whatever,” he said.
Judge Brett Kavanaugh
Kavanaugh’s name was added to former President Donald Trump’s shortlist of Supreme Court candidates shortly after he sided with the administration in a 2017 case involving an abortion. Trump chose him for court the following year. As a judge, Kavanaugh opposed Louisiana’s ruling and voted to allow Texas’ new law to go into effect, although he took a less absolutist stance than some of his fellow Conservatives. In the case of Louisiana, for example, Kavanaugh wrote that more information was needed on how state restrictions on clinics would affect doctors who perform abortions and appeared to suggest his vote could change. knowing this information.
Kavanaugh’s most comprehensive writings on abortion came while he was a judge in the Federal Court of Appeals in Washington. The Trump administration had appealed a lower court ruling ordering it to allow a 17-year-old pregnant immigrant in its custody to have an abortion. The administration’s policy was to refuse to help these minors obtain abortions while in detention.
Kavanaugh was part of a three-judge panel that postponed the abortion, arguing that officials should have a limited window to move the minor out of government custody into the care of a sponsor. She could then get an abortion without government help. The full appeals court then overturned the decision and the teenager got an abortion. Kavanaugh called the decision out of step with “many Supreme Court majority opinions that have repeatedly upheld reasonable regulations that do not place an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade. “.
Kavanaugh has been criticized by some conservatives for not going as far as a colleague, Justice Karen Henderson, who unequivocally stated that an immigrant to the United States illegally has no right to an abortion. During his confirmation hearing in the court of appeals, Kavanaugh dodged questions about his own personal beliefs about Roe v. Wade.
Justice Amy Coney Barrett
Barrett’s only public Supreme Court vote on abortion was to allow the Texas “fetal heart rate” law to come into effect. She also voted twice as an appeals court judge to reconsider rulings that blocked abortion restrictions in Indiana.
In 2016, shortly before the election that would put Trump in power, she explained how she believed the abortion law could change if Trump had the option of appointing judges. “I… don’t think the base matter – Roe’s heart believing that, you know, women have the right to abortions – I don’t think that would change,” said Barrett, then a law professor. at Notre Dame. She said the limits on what she called “very late abortions” and restrictions on abortion clinics would be more likely to be maintained.
Barrett also has a long history of personal opposition to abortion rights, co-author of a 1998 law review article that said abortion is “always immoral.” During his 2017 hearing to be a judge on the court of appeal, Barrett said in written testimony: “If I am confirmed, my opinion on this or any other matter will not affect the exercise of my duties as a judge. “