The Supreme Court appears at dusk in Washington on October 22 (J. Scott Applewhite, Associated Press)
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WASHINGTON – Both sides tell the Supreme Court that there is no middle ground in Wednesday’s showdown over abortion. The judges can either confirm the constitutional right to an abortion or obliterate it altogether.
Roe v. Wade, the 1973 landmark ruling declaring a nationwide right to abortion faces its most serious challenge in 30 years before a court with a Conservative majority of 6-3, which has been resubmitted by three nominees by President Donald Trump.
“There are no half measures here,” said Sherif Girgis, a Notre Dame law professor who once served as an associate attorney for Judge Samuel Alito.
A verdict that overturned Roe and the 1992 case of Planned Parenthood v. Casey would lead to direct bans or strict restrictions on abortion in 26 states, according to the Guttmacher Institute, a research organization that supports abortion rights.
The case, which is being argued on Wednesday, comes from the Mississippi, where a law from 2018 would ban abortions after 15 weeks of pregnancy, long before viability. The Supreme Court has never allowed states to ban abortion before the time of about 24 weeks when a fetus can survive outside the womb.
The judges weigh disputes individually Texas’ long-standing abortion ban, in about six weeks, although these cases are about the unique structure of the law and how it can be challenged in court, not abortion law. still, Proponents of abortion rights were upset over the court’s 5-4 vote in September to let the Texas law, which relies on lawsuits from citizens to enforce it, come into force in the first place.
“This is the most worrying thing I’ve ever been,” said Shannon Brewer, who runs the only abortion clinic in Mississippi, the Jackson Women’s Health Organization.
The clinic offers abortions up to 16 weeks of pregnancy, and about 10% of the abortions it performs take place after the 15th week, Brewer said.
She also noted that since the Texas law came into force, the clinic has seen a significant increase in patients operating five days or six days a week instead of two or three.
Lower courts blocked Mississippi law as they have other abortion bans that use traditional enforcement methods by state and local officials.
The Supreme Court had never before agreed to deal with a case involving an abortion ban before viability. But after Judge Ruth Bader Ginsburg’s death last year and her replacement by Judge Amy Coney Barrett, the third of Trump’s nominees, the court said it would take up the case.
Trump had promised to appoint “life-friendly judges” and predicted they would take the lead in overturning the abortion rulings. Only one judge, Clarence Thomas, has publicly called for Roe to be set aside.
The court was able to uphold the Mississippi law without explicitly overriding Roe and Casey, a result that would satisfy neither party.
Proponents of abortion rights say the result would be tantamount to a direct verdict that overturned previous cases because it would erase the rationale behind nearly half a century of Supreme Court law.
“A decision to uphold this ban is tantamount to overriding Roe. The ban bans abortion about two months before viability,” said Julie Rikelman, who will argue the case for the clinic.
Opponents of abortion, on the other hand, argue that the court essentially invented the abortion law in Roe and Casey and that they should not repeat that error in this case.
If judges uphold Mississippi law, they will have to explain why, said Thomas Jipping, a legal fellow at the Heritage Foundation. They can either override the two big cases, Jipping said, “or they’ll have to come up with another fabricated rule.”
Conservative commentator Ed Whelan said such an outcome would be a “massive defeat” in line with the 1992 Casey decision, in which a court of eight judges appointed by Republican presidents unexpectedly confirmed Roe.
This court appears far more conservative than the one that ruled that Casey, and legal historian Mary Ziegler at Florida State University Law School, said the court would likely “override Roe or put us on the path to doing so.”
Chief Justice John Roberts might find the more incremental approach appealing if he can persuade a majority of the right to go along. Since Roberts became chief judge in 2005, the court has moved in smaller steps on some issues, even when it appeared there was only one binary choice.
It took two cases in court to tear the heart out federal suffrage law which curbed potentially discriminatory voting laws in states with a history of discrimination.
In the field of organized labor, the Court reviewed a number of cases that overturned the power of public sector unions.
The Supreme Court also heard two rounds of arguments over restrictions on independent spending in the political arena, before removing limits on how much money companies and unions can pour into advocacy.
If the court looks at the public’s feelings, it will find poll after poll showing support for maintaining Roe, though some studies 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 have enacted so-called abortion-triggering laws that would enter into force and ban all or almost all abortions.
Women in these states who want an abortion can be driven hundreds of miles to reach the nearest clinic, or they can get abortion pills in the mail. Medicinal abortions now account for 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 conclusion that would force an end to almost all legal abortions, wrote Princeton professor Robert George and scholar John Finnis. Finnis was Judge Neil Gorsuch’s adviser in his Oxford dissertation, an argument against assisted suicide.
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