The Supreme Court is going to fight abortion all or nothing

The Supreme Court is going to fight abortion all or nothing

Washington – Both sides tell the Supreme Court there is no compromise in Wednesday’s standoff over abortion. Judges can either reassert or eliminate the constitutional right to abortion.

Roe v. Wade, the landmark 1973 ruling declaring abortion nationwide, faces its most serious challenge in 30 years in a 6-3 conservative court brought back by three appointees by President Donald Trump.

“There are no fair procedures here,” said Sherif Gerges, a professor of law at the University of Notre Dame who previously served as legal clerk for Judge Samuel Alito.


The ruling that overturned Roe’s case and Planned Parenthood’s 1992 case against Casey would result in outright bans or severe restrictions on abortion in 26 states, according to the Guttmacher Institute, a research organization that supports abortion rights.

The case on Wednesday comes from Mississippi, where a 2018 law bans abortions after 15 weeks of pregnancy, long before they last. The Supreme Court has never allowed states to ban abortion before about 24 weeks in which the fetus can survive outside the womb.

The judges are separately examining controversies over the Texas abortion ban much earlier, in about six weeks, although these cases revolve around the unique structure of the law and how it can be challenged in court, not the abortion right. However, abortion rights advocates were alarmed by a 5-4 court vote in September to allow the Texas law, which relies on citizens’ lawsuits to enforce it, into effect in the first place.


“This is my biggest concern of all,” said Shannon Brewer, who runs the only abortion clinic in Mississippi, the Jackson Women’s Health Organization.

Breuer said the clinic offers abortions up to 16 weeks of pregnancy and about 10% of the abortions it performs take place after the 15th week.

She also noted that since the Texas law went into effect, the clinic has seen a significant increase in patients, operating five or six days a week instead of two or three.

Lower courts blocked the Mississippi law, because they had another abortion ban that used traditional enforcement methods by state and local officials.

The Supreme Court had never before even agreed to hear a case on the pre-abortion ban. But after Judge Ruth Bader Ginsburg died last year and was replaced by Judge Amy Connie Barrett, Trump’s third appointee, the court said it would consider the case.

Trump vowed to appoint “pro-life judges” and predicted that they would lead the way in repealing abortion provisions. Only one judge, Clarence Thomas, has publicly called for Roe to be set aside.


The court could uphold Mississippi law without expressly invalidating Roe and Casey, an outcome that would satisfy neither side.

Abortion rights advocates say the outcome would be similar to an outright ruling to strike down earlier cases because it would erase the rationale for nearly half a century of Supreme Court law.

“Any decision to uphold this ban is an overturning of Roe. The ban prohibits abortion approximately two months before it is applicable,” said Julie Rickleman, who will be discussing the issue at the clinic.

Abortion opponents, on the other hand, argue that the court invented abortion law in Roe and Casey, and should not repeat that mistake in this case.

If judges uphold the Mississippi law, they will have to explain why, said Thomas Gipping, legal fellow at the Heritage Foundation. They will either bust the two big issues, Gipping said, “or they’ll have to come up with another made-up base.”


Conservative commentator Ed Whelan said such an outcome would be a “massive defeat” on par with the Casey ruling in 1992, in which a court of eight judges appointed by Republican presidents unexpectedly reaffirmed Roe.

This court appears much more conservative than the one Casey decided, and legal historian Mary Ziegler at Florida State University School of Law said the court would probably “overturn Roe’s ruling or set us on the path to doing so.”

Chief Justice John Roberts may find the incremental approach more attractive if he can persuade a majority of the Court’s members to move forward. Since Roberts became chief justice in 2005, the court has moved smaller steps on some cases, even when it seemed like there was only a binary choice.

The court needed two cases to tear up the core of the federal voting rights law that curbed potentially discriminatory voting laws in states with a history of discrimination.


In the area of ​​organized labor, the court has gone through a series of cases that undermined the power of public sector unions.

The Supreme Court also heard two rounds of debate over limits on independent spending in the political arena before removing limits on how much money companies and unions can pump into election advocacy.

If the court looks at public sentiment, you’ll find survey after survey showing support for maintaining Roe, although some surveys have also found support for greater restrictions on abortion.

Mississippi is one of 12 states willing to act almost immediately if Roe capsizes. Those states have enacted so-called abortion laws that will go into effect and ban all or nearly all abortions.

Women in those states wishing to abort may face drives of hundreds of miles to get to the nearest clinic or may receive abortion pills by mail. Medical abortion now accounts for 40% of miscarriages.


Some legal memos in the case make it clear that Roe’s end is not the ultimate goal of abortion opponents.

They should recognize that “unborn children are persons” under the Fourteenth Amendment to the Constitution, Princeton professor Robert George and scholar John Fiennes wrote, a conclusion that would force an end to nearly all legal abortions. Fiennes was an advisor to Judge Neil Gorsuch on his Oxford dissertation, an argument against assisted suicide.

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