On December 1, 2021, the Supreme Court of the United States heard oral arguments in response to the Mississippi law, enacted in 2018, banning abortions after 15 weeks of pregnancy. After two hours of intense inquiries, the fate of one of the most consequential rulings in our nation’s history, Roe v. Wade, is in the hands of Chief Justice Roberts, Justice Sotomayor, Justice Thomas, Justice Kagan, Justice Gorsuch, Justice Alito, Justice Breyer, Justice Barrett and one of the newest members- Justice Kavanaugh.
Many reproductive advocates, on both sides of the abortion issue, viewed the newest additions to the Court to be the writing on the wall for a Roe challenge. Ultimately, the Court tipped towards a more socially conservative judiciary with Kavanaugh in 2018. During his senate judicial proceeding, Kavanaugh dodged questions regarding Roe’s precedent, leaving many to not only guess his legal analysis of abortion but the concept of precedence as well. A review of past opinions does not help ascertain his judicial leanings either, past being conservative.
In its initial request for Supreme Court review, Mississippi Attorney General told the Court “The questions presented in this petition do not require the court to overturn Roe.” However, they did raise the possibility in a footnote. It is important to note that the Supreme Court only allowed this case to be heard in the narrow context of the 15-week viability law. To Chief Robert’s chagrin, the footnote became the central discussion during oral arguments. The State’s Attorney General emphasized that the Court has in fact overturned itself based on the belief that the original decision was wrong, most notably in Plessy v. Ferguson.
Overturning Roe would require the Court to test the well-established legal theory of precedence. This theory is deeply rooted in the Court’s history and validity. Justice Breyer reminded the Court that they already had this very discussion in Planned Parenthood v. Casey, the other consequential abortion case that reaffirmed Roe’s core principles. He proselytized the legal analysis of Casey, stopping short of reading portions of the opinion into the record. He stressed that reversing Roe calls into question the Court’s legitimacy.
The consequences and implications were not lost on the other Justices. To that end, Justice Sotomayor called out the problematic nature with politicizing the Court and signaled other constitutional rights could be threatened, like the Second Amendment. This was in response to the argument that abortion is not a constitutional right because it is not written in the text of the Constitution. Textually speaking, she explained many disagree on the constitutional right for an individual to “bear arms.” Sotomayor highlighted that some view the Second Amendment to arm those in a militia, not individuals.
The hearing mentioned an avalanche of cases that cited Roe as a source for privacy rights, bodily autonomy rights, and liberty rights. Pro-choice advocates warn that these rights that drawn from Roe, could now be at threated. However, new implications, outside of precedence, were raised when Sotomayor underscored the disproportionate risk this new law may bring. She stated,
“So when does the life of a woman and putting her at risk enter the calculus? Meaning, right now, forcing women who are poor – and that’s 75 percent of the population and a much higher percentage of those women in Mississippi who elect abortions before viability – they are put at a tremendously greater risk of medical complications and ending their life, 14 times greater to give birth to a child full term, than it is to have an abortion before viability. And now the state is saying to these women, we can choose not only to physically complicate your existence, put you at medical risk, make you poorer by the choice because we believe what?”
Turning from precedence to abortion itself, a group of historians submitted an amicus brief on the history of abortion. Interestingly, abortion was not always illegal or criminalized. The practice of abortion in the United States dates back to the time of the early settlers. In the 1840s and 1850s, abortion became commercialized and increasingly used by married, white, native-born Protestant women who often had ample financial resources. By the 1870s, the New York Times estimated that there were about 200 full-time abortionists in New York City.
The touchstone decision of Roe not only paved the way for the decriminalization of medical abortions but identified the fundamental right to privacy. The Court determined the right to privacy in abortion was fundamental under the substantive due process clause. Pointedly, this fundamental right of privacy has often been extended as a right to bodily autonomy. Although the Court noted the right was not absolute because the state may have a potential state interest, the strictest standard applied. The Court went on to list potential factors it would consider, including medical reasons, psychological harm from distress, and societal stigma all within a woman’s control to decide whether to proceed with an abortion. However, today’s Supreme Court signaled it may be ready to scrap the old framework altogether.
Until the opinion is published, many will analyze the tone and comments made by the Justices today. Many women may ponder the question Vice-President Harris asked Justice Kavanaugh while she was a Senator, “Can you think of any laws that give the government the power to make decisions about the male body.” He could not give any examples.