The state of Mississippi argued for its right to set its own abortion laws before the United States Supreme Court on Wednesday, in a case that has the potential to overturn the landmark 1973 Roe v. Wade decision legalizing abortion nationwide.
At issue is the state’s appeal of a lower court’s decision to overturn its statute limiting elective abortions to 15 weeks’ gestation. Mississippi’s legal challenge forced the Court to revisit Roe, which nullified the abortion statutes of every state and replaced them at the federal level with its own concoction.
Many conservative states have attempted to overrule Roe, notably in Planned Parenthood v. Casey (1992), but were unsuccessful. Now that three conservative justices sit on the Court, they are trying again. When the Court accepted Mississippi’s clear rebuke of Roe for review, everyone knew that something significant was about to occur—the showdown now unfolding is proving that point.
With Roe v. Wade, the Court invented rules for states to regulate abortions in each trimester of pregnancy, mandating that birth control abortions be permitted through the first two. Only after the baby’s viability—its ability to live outside the womb—may states prohibit birth control, but this does not necessarily include the right to prohibit abortions in the case of birth defects or other situations. The 1973 Court seems to have discovered this federal right guaranteeing abortions within the Constitution’s 14th Amendment, which apparently guarantees liberty, privacy, and the right to pursue a career without the drag of annoying little kids. The broad scope of this right was—and still is—unheard of elsewhere in the civilized world. The United States has among the most permissive abortion laws in the world. It is one of only seven countries in the world that allows elective abortion after 20 weeks’ gestation, a distinction it shares with the Communist governments of North Korea and China.
But while basis for the 1973 Roe ruling was supposedly somewhere in the Constitution, that link has grown more and more farfetched as the years have passed. Roe was immediately attacked by legal scholars using arguments that have only grown more persuasive as subsequent cases unfolded. For one thing, late-term abortions performed using saline solution injections were found to not always kill the child. Since states prohibited abortion by fetal dismemberment, women were getting abortions, and a baby, too. In the year 2000 the Court banned partial-birth abortions in Stenberg v. Carhart (2000), only to overturn that ban several years later in Gonzales v. Carhart (2007). Challenges to parents’ rights then came, and in Planned Parenthood v. Danforth (1976) the Court ruled that the fathers of unborn children didn’t have any rights to their offspring. Regarding parents of pregnant minors, the Court discovered that their daughters could sometimes undergo surgery without their consent.
These legal questions perplexed the Court over the years, building the tension until the present day. That tension played out in the Court on Dec. 1, as liberal justices Sonia Sotomayor and Stephen Breyer began oral arguments by essentially attacking their colleagues who had voted to hear the case. What about legal precedent, they thundered? How will the Court avoid looking political if it changes the Constitution simply because three conservative justices joined the Court and see things differently? Justice Breyer kept referring to Casey’s delineation of the factors that needed to be met before the Court should overrule the precedent set by Roe: not only must the case have been wrongly decided, but it must be shown to have been an unworkable solution.
Justice Samuel Alito pursued this line started by his colleague by bringing up Plessy v. Ferguson (1896). That case decreed the separate-but-equal doctrine, but all agreed that it was wrongly decided. Could the Court have legitimately overruled that case in 1898 simply because it wrongly decided, yes or no? Needless to say, no yes-or-no answer was forthcoming.
One amusing feature of Wednesday’s argument was the 1973 vocabulary which was totally void of today’s “woke” lingo. Law school deans and federal judges today might invoke pregnant men, pregnant people, and pregnant nonbinaries, but there was none of that from the bench or the lectern in this Court session. No one offered preferred pronouns, either. It was about women all the way, with the abortion advocates who offered opinions to the Court stressing the Mississippi statute’s harmful effects on women’s liberty.
Amy Coney Barrett, the only justice to have both birthed and adopted children, noted the ability to give children up for adoption in her rejection the respondents’ assertion that childbirth prevented women’s career advancement. The Biden administration countered, in essence, that women don’t want the children they bore running around in the world somewhere. In response to the assertion that the Constitution guarantees bodily integrity, Justice Barrett alluded to vaccine mandates, raising the issue of a possible double standard at play.
Some of the arguments against the Mississippi statute were laughable. Abortion advocates claimed that poor women need a full 24 weeks in order to earn money for their abortions. They also asserted that poor women need abortions because they can’t afford birth control.
The Justices’ questions during oral argument suggest that the Supreme Court will deliver the pro-abortion side a blow by upholding the Mississippi’s restrictions. But will Roe be overruled to the extent that the Court will get out of the abortion business entirely? Or will it simply allow the states to shorten the time frame for legal abortions? Chief Justice Roberts might be supporting the latter option, for he noted that the viability standard set by Roe’s author, Justice Harry Blackmun, was inspired a law clerk’s suggestion and has no constitutional pedigree at all. Regardless, after almost 50 years, we have almost certainly entered a new chapter on this contentious issue.
Betsy Clarke is a retired law clerk who lives in Columbus, Ohio.