The state of MI and hard core Christian fundamentalists on the Supreme Court want to see the 1973 Roe v. Wade and another key pro-abortion precedent overturned. Abortion rights defenders argued to keep the old standard and Roe intact. Fortunately, the state anti-abortion side is arguing for the issue to be left to the states and the Republican judges seem to be OK with that. One possibility, now seemingly remote in view of the arguments this morning, was that 5 or 6 of the Republican Christians on the court would kill Roe and make all abortions in all states illegal. An all-out ban everywhere, at any time now seems to be quite unlikely based on the ~80 minutes of argument I listened to on the radio.
As the New York Times writes, Chief Justice Roberts wants to uphold the MI law, but not overturn Roe. The other 5 Republicans seem to want to see Roe gone:
Other conservative justices indicated that they were not interested in the chief justice’s intermediate approach. Justice Samuel A. Alito Jr. said “the only real options we have” are to reaffirm Roe or to overrule it.
Assuming the three most conservative members of the court — Justices Alito, Clarence Thomas and Neil M. Gorsuch — are prepared to overrule Roe entirely, Chief Justice Roberts would need to attract at least two votes for a narrower opinion, one upholding the Mississippi law but not overruling Roe in so many words, to be controlling. But the most likely candidates, Justices Brett M. Kavanaugh and Amy Coney Barrett, said little to suggest that they were inclined toward that narrower approach.
The court’s three liberal members — Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor — were adamant that Roe should stand.
Should Roe be overturned, at least 20 states will immediately or in short order make almost all abortions unlawful, forcing women who can afford it to travel long distances to obtain the procedure.
Chief Justice Roberts expressed frustration with Mississippi’s litigation strategy. In the state’s petition seeking Supreme Court review, officials told the justices that “the questions presented in this petition do not require the court to overturn Roe or Casey,” though lawyers for the state did raise the possibility in a footnote. Once the court agreed to hear the case, the state shifted its emphasis and began a sustained assault on those precedents.
Justice Breyer quoted from Planned Parenthood v. Casey, the 1992 decision that reaffirmed what it called Roe’s core holding, the one prohibiting states from banning abortions before fetal viability: “To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court’s legitimacy beyond any serious question.”
Justice Sotomayor asked whether the court would “survive the stench” of being considered a political institution, a point echoed by Justice Kagan.
Some arguments in brief
Anti-abortion people see Roe and 50 years of legalized abortions as (i) causing vast division and damage to society, and (ii) unconstitutional and not based on any workable standard to decide time limits for abortions. They argue that a standard of fetus viability is unworkable and socially divisive. Pro-abortion arguments are that (i) the viability standard is quite workable and about as objective as one can get with a complex issue like this, and (ii) many women have relied heavily on the abortion option to control their lives, including when a pregnancy is unplanned despite use of birth control.
In the time I listened, no pro-abortion argument was made that allowing abortions forces no woman to get an abortion, but banning abortions forces them to carry a birth to term and usually raise an unwanted child. Apparently, that is not an argument that carries legal weight and/or the court is just not willing to even hear it. Or maybe another concern I am unaware of is at play.
The pro-abortion side also argued that if the MI law is upheld, anti-abortion states would pass laws to seriously cut back on the time allowed for abortions, maybe to two or three weeks after conception or even less. A contested Texas law sets the limit at 6 weeks, which shows that time-cutting scenario has already started to play out. The anti-abortion side seems to implicitly agree and argues that there is no reasonably workable standard and thus Roe and key pro-abortion precedents need to be overturned and the issue left to the states.
The pro-abortion side also argued that since Roe and the key precedent Casey, not much has changed in science, law or society. That appears to be true. Anti-abortion arguments about fetal pain have been debunked because the fetal brain is not developed to the point that the early brain can feel pain at all. Despite the science, anti-abortion advocates argue the false fetal pain argument.
Finally, Chief Justice Roberts was desperately looking for a middle ground to uphold the MI law without overturning Roe. There really isn't any middle ground here I could see. Either fetal viability as the legal limit for protecting abortions stands, or Roe falls. The anti-abortion advocates seem to have a valid point here. Since 5 of of the 6 Republicans see fetal viability as (i) an unworkable standard, or (ii) otherwise rationalizable into no barrier, Roe seems set to fall.
When the court decides (probably next May or June) to kill Roe, it is likely that at least each state can decide for itself on how to regulate abortions. That's the good news. The damage to women who are forced to bear a child, and their lives, in states that outlaw abortions is the price those people will pay for fundamentalist Christian nationalism deciding from the bench what is legal or constitutional and what isn't.
It is pretty clear that the radical Republicans on the federal bench are willing to survive the stench of the Supreme Court being considered a political institution, which it already is. That is a key reason why fundamentalist radical Christian Republicans have been put there by Republican Senates and Presidents. They hate abortion rights even more than they hate voting rights or same sex marriage rights.
Some anti-abortion judges and advocates also argue the fetus has rights equal to the mother and thus few or no abortions can be constitutional.
The neutral constitution argument: Anti-abortion advocates correctly argue the Constitution is silent about abortion. They argue that the matter must therefore be left to the states. If that was to hold, think of how many federal laws would be open to attack and thrown back to the states. That is why radical right conservatives have been attacking the general welfare and necessary and proper clauses for decades. They also dislike the implied powers doctrine for the same reasons.
In my opinion, shifting power to states, shifts power to elites and wealthy people and interests. States are easier and cheaper for special interests and wealth to corrupt and subvert than a single national government. This neutrality argument is potentially lethal to democracy and the rule of law.
Question: If Roe is overturned and states left to decide if they want to allow abortions under conditions the legislatures specify, would that be a win for abortion rights in view of the probably remote possibility the court could make all abortions illegal in all states under any circumstances? (is the glass half full or half empty?)
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