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The Supreme Court heard oral arguments at Jackson Women’s Health against Dobbs on Wednesday, asking the court to overturn a lower court ruling that has prevented Mississippi State from enforcing its 15-week abortion ban.
This case has implications for two long-standing Supreme Court precedents, Roe v. Wade and Planned Parenthood v. Casey, it is severely restricted when states prohibit or limit abortion.
The verbal arguments ended around noon on Wednesday, with five key moments emerging.
1. Breyer asks why the court should ignore ‘Star Decisis’ to dismiss Wade against Roe
Justice Stephen Breyer asked Mississippi Solicitor General Scott Stewart, who was arguing the case for the state of Mississippi, and asked why the Supreme Court should ignore “Star Disease”, the legal principle that the court usually follows in its previous verdicts by repealing Roe.
“They say it’s rare,” Breyer said. “They call it a watershed. Why? Because the country is divided, emotions are rising, and the country, for better or worse, decided to resolve their differences by putting the constitutional principle in this case.”
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Stewart responded, arguing that much has changed in the years since Roe’s decision, that states should account for new developments.
“Over the last 30 years, the viability, the legal developments, the real developments that the states have been able to count on,” Stewart said.
Although it is rare for the Supreme Court to overturn its own precedent, it has happened before. Perhaps the most famous example of a repealed precedent 1954 Decision of the Board of Education against Brown, Which pushed Ferguson against Plessy and ended the separation under the so-called “separate but equal” legal doctrine.
2. Chief Justice Roberts worries about the future of other precedents if the court overturns Roe
Chief Justice John Roberts presumably hesitated to overturn the precedent, asking whether the repeal of Roe could lead to more such decisions in the future.
“There were a lot of cases during the Row, not on that scale, but the same kind of analysis, the kind of things that we say today are exactly what went wrong,” Roberts said. “If we look at it from today’s perspective, the long list of cases we are going to mention is misdiagnosed.”
Stewart replied that “other disputed areas or once-disputed areas are sufficiently situated, with no clear rules and those considerations against them.”
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The Mississippi Solicitor General added that the court “does not have to go that route.”
3. Roberts questions why 15 weeks is not enough for a child to choose whether to have an abortion
But Roberts challenged lawyers arguing in favor of striking the law as to why 15 weeks is not enough for a woman to decide to have an abortion.
“If you think the problem is choice – women should have the option to terminate their pregnancy – if they think there’s a point where they have a fair choice, there’s a chance to make a choice,” Roberts said. “And why is 15 weeks an inappropriate line? It seems to me that it has nothing to do with viability, choice. But if it’s really a problem of choice, why isn’t 15 weeks enough?”
Lawyer Julie Rickelman, who advocated the Center for Reproductive Rights, argued that allowing Mississippi law to stand up would create a “slippery slope” that would allow states to enforce more restrictive abortion laws.
“The state acknowledges that some women will not be able to get an abortion before 15 weeks, and this law restricts them from doing so,” she said. “Without viability, there is no stopping point. States are rushing to ban abortion at virtually any stage of pregnancy.”
But Roberts noted that most countries prohibit abortion after 15 weeks, when the United States teamed up with countries such as North Korea and China to allow abortions later in pregnancy.
4. Alito Grills Pro-Choice Advocates Line for Abortion Rules on Viability Validity
Judge Samuel Alito targeted pro-choice advocates on whether the viability of rape is a legal limit for abortions.
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Alito asked Rickelman, “What do you say to the argument made by pro-choice people many times?
Alito noted that a woman may still want to terminate pregnancy after viability, but before and after “the fetus is eager to have life.”
“It’s not in the eyes of some, your honor,” replied Rickelman. “This is philosophical because in ordering interests at risk, the court had to draw a line between conception and birth.”
5. Kavanagh, Breyer clash over Supreme Court precedent
Justices Brett Kavanagh and Stephen Breyer had a heated exchange over whether the court should overturn precedent, Kavanagh has previously cited examples of when the court did this, and Breyer Kavanagh accused him of making false equality.
“History tells a slightly different story, sometimes than I would have imagined,” Kavanagh said of the sterosis. “If you think about some of the most important cases in the history of this court … there is a string that has overturned cases.”
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“Brown v. Board is separate but equally illegal,” he continued. Baker v. Carr West Coast Hotel, which set the stage for one person vote, recognizing the state’s authority to regulate business. That said, Map v. Ohio, the exclusionary rule applies to state criminal prosecution. “
Kavanagh noted that some of those cases were “the most effective and important in court history,” but “the court overruled the precedent.”
“They have not included the list that Justice Kavanagh has here. … There are complex criteria that he is talking about that link to the position in this court of law,” Breyer said a few minutes later. “What I’m saying is that you should read them before you start to tell if they are overlapping or not in the sense of calling for special care.”
As the oral arguments go out, the decision of the case may come in the spring.
Many analysts believe the case is the most effective abortion litigation in 40 years, placing Roy’s future in the hands of the Supreme Court, which has undergone tremendous changes and is currently in the 6-3 conservative majority.