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Takeaways from the Supreme Court’s historic arguments on abortion rights


In the foreground, the fate of Roe v. Wade, the landmark 1973 Supreme Court ruling legalizing abortion nationwide before viability, which can occur at around 24 weeks pregnant, and has been at the center of U.S. policy ever since.

It looks like the Supreme Court will uphold Mississippi’s law that prohibits abortion 15 weeks after pregnancy begins, well ahead of the precedent-set viability line.

The law – which has no exceptions for rape or incest – was passed in 2018, but immediately blocked by two federal courts which ruled it contrary to Roe.

Judge Carlton Reeves of the United States District Court for the Southern District of Mississippi struck down the law and said the state legislature chose to pass something “it knew was unconstitutional to support a campaign. decades, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade. Reeves also concluded that “the legislature’s stated interest in women’s health is pure clarity.”

A federal appeals court also blocked the law, noting that it conflicted with Roe, who had been “affirmed and reaffirmed.”

But with a Tory 6-3 majority, only court liberals and lawyers fighting the law argued to keep it intact.

Roberts floats a middle ground

Chief Justice John Roberts was quick to come up with a middle ground that would uphold Mississippi law but not end abortion rights nationwide.

He seemed to suggest the court could pull back the 15-week viability line in Mississippi law and leave another day if the judges were to overturn Roe. “Why is 15 weeks not enough? To decide whether to have an abortion, he said. As for abortion rights supporters, they’ve long said there would be no way to uphold the law without gutting Roe out – even if the judges don’t say that out loud.

It’s unclear if there are any judges interested in Roberts’ idea.

If the court overturns Roe, people in vast areas of the South and Midwest would be left without access to an abortion. The impact would be felt mostly by poor women who might not be able to travel or be absent from work.

Trump’s candidates were sometimes hard to read

President Donald Trump, during his first White House campaign, prioritized judicial confirmations in the hope of filling the courts with what he called “pro-life” judges. The very fact that the court agreed to hear this case showed that Trump’s focus on the courts has paid off. The lingering question is whether all three of Trump’s candidates are ready to overthrow Roe this term.

For his part, Judge Brett Kavanaugh – who did not always reveal his true feelings during oral argument – insisted that if the Court were to overturn Roe, the issue would fall to the States and a “majority” of them could. continue to “freely allow abortion.”

At another point, he told an abortion lawyer that she was making a “strong argument,” but then shifted gears. He said if the problem balances the “interests of the pregnant woman and the interests of the fetus,” it could be better resolved by the courts or state legislatures. He said opponents of abortion believe the court should be “scrupulously neutral”.

Barrett, who as a law professor signed a letter against abortion, was a little harder to read during oral argument. However, abortion supporters were alarmed when she spoke of so-called “safe haven” laws that allow a woman to legally renounce a newborn baby and adoption. It seemed to play into Mississippi’s argument that the scenery is better for women in those areas now, decades after Roe and Casey’s decision.

Liberals emphasize importance of precedent

The three liberals – Stephen Breyer, Sonia Sotomayor and Elena Kagan – at times seemed almost pained during oral argument.

Sotomayor was the most dogged of defending the precedent, especially near the start of arguments when the Mississippi Solicitor General was at the lectern.

At one point, she noted that “15 judges” in 50 years have voted to reaffirm the rule of viability in court precedents. She suggested that the only thing that had changed was the makeup of the tribunal.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are only political acts?” asked Sotomayor.

Meanwhile, Texas 6-week ban remains in effect

While this was the first time the judges discussed Mississippi law while they were all together on the bench, they had been talking about abortion for weeks behind the scenes.

That’s because on September 1, they allowed the Texas abortion law to go into effect, which bans six-week abortion. They have since held expedited pleadings on the case, but have yet to deliver an opinion. It is even likely that they already know how this case will play out.

A decision might not fall until next summer.

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