Roe v. Wade, the landmark 1973 decision that declared a national abortion right, faces its most serious challenge in 30 years in a court with a Conservative 6-3 majority that was renewed by three people appointed by the President Donald Trump.
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“There are no half-measures here,” said Sherif Girgis, professor of law at Notre-Dame who was once a legal assistant to Judge Samuel Alito.
According to the Guttmacher Institute, a research organization that supports abortion rights, a ruling that overturned Roe and Planned Parenthood v. Casey in 1992 would lead to outright bans and severe restrictions on abortion in 26 states.
The case argued Wednesday comes from Mississippi, where a 2018 law would ban abortions after 15 weeks of pregnancy, long before viability. The Supreme Court has never allowed states to ban abortion before the point of about 24 weeks when a fetus can survive outside the womb.
Judges are separately assessing disputes over the abortion ban much earlier in Texas, at around six weeks, though those cases focus on the unique structure of the law and how it can be challenged in court. and not on the right to abortion. Yet abortion rights advocates were troubled by the court’s 5-4 vote in September to allow Texas law, which relies on citizens’ lawsuits to enforce it, to come into effect in. first place.
“She’s the most worried I’ve ever been,” said Shannon Brewer, who runs Mississippi’s only abortion clinic, the Jackson Women’s Health Organization.
The clinic offers abortions up to 16 weeks gestation and about 10% of the abortions it performs take place after the 15th week, Brewer said.
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She also noted that since the Texas law came into effect, the clinic has seen a substantial increase in the number of patients, operating five days or six days a week instead of two or three.
Lower courts have blocked Mississippi law because they have other abortion bans that use traditional methods of enforcement by state and local authorities.
The Supreme Court had never even agreed to hear a case concerning a ban on abortion before viability. But following the death of Judge Ruth Bader Ginsburg last year and her replacement by Judge Amy Coney Barrett, the third of Trump’s appointees, the court said it would take up the case.
Trump had pledged to appoint “pro-life judges” and predicted that they would pave the way for overturning abortion decisions. Only one judge, Clarence Thomas, has publicly called for Roe to be quashed.
The court could enforce Mississippi law without explicitly overturning Roe and Casey, a result that would not satisfy either party.
Abortion rights advocates say the result would amount to a categorical ruling overturning previous cases, as it would erase the rationale underlying nearly half a century of Supreme Court law.
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“A decision upholding this ban is tantamount to overturning Roe. The ban bans abortion about two months before viability,” said Julie Rikelman, who will advocate for the clinic.
On the other hand, abortion opponents argue that the court essentially made up the abortion law in Roe and Casey, and should not repeat that mistake in this case.
If judges uphold Mississippi law, they’ll have to explain why, said Thomas Jipping, a Heritage Foundation legal scholar. They can either cancel the two big deals, Jipping said, “or they’re going to have to come up with another made-up rule.”
Conservative commentator Ed Whelan said such an outcome would be a “massive defeat” on par with the Casey decision in 1992, in which a court of eight judges appointed by Republican presidents unexpectedly reaffirmed Roe.
This court seems much more conservative than the one that decided Casey, and law historian Mary Ziegler of Florida State University Law School, said the court would “likely overturn Roe or put us on the path to doing so. “.
Chief Justice John Roberts might find the more gradual approach appealing if he can persuade a majority of the court to accept it. Since Roberts became chief justice in 2005, the court has progressed in stages on some issues, even when it looked like there was only a binary choice.
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It took two cases for the court to tear out the core of the federal voting rights law that cracked down on potentially discriminatory election laws in states with a history of discrimination.
In the area of organized labor, the court considered a series of cases that have eroded the power of public sector unions.
The High Court also heard two rounds of arguments over restrictions on independent spending in the political arena before removing limits on the amount of money businesses and unions can invest in electoral advocacy.
If the court looks at public opinion, it will find poll after poll that shows its support for preserving Roe, although some polls also find support for greater restrictions on abortion.
Mississippi is one of 12 states ready to act almost immediately if Roe is overthrown. These states enacted abortion induction laws that would go into effect and ban all or almost all abortions.
Women in these states who wish to have an abortion could face hundreds of miles to reach the nearest clinic, or they could get abortion pills in the mail. Medical abortions now represent 40% of abortions.
Some legal briefs in the case make it clear that ending Roe is not the ultimate goal of abortion opponents.
The court should recognize that “unborn children are persons” under the 14th Amendment of the Constitution, a finding that would force an end to almost all legal abortions, wrote Princeton professor Robert George and academic John Finnis. Finnis was Judge Neil Gorsuch’s advisor in his Oxford thesis, An Argument Against Assisted Suicide.
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