5 takeaways from the landmark abortion hearing in the U.S. Supreme Court

December 2, 2021
5 takeaways from the landmark abortion hearing in the U.S. Supreme Court
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One of the most important legal cases in modern U.S. history was heard Wednesday by the Supreme Court.

It involves abortion and this could be the big one. 

The justices will consider limiting abortion access — a longstanding dream for some, and a moment dreaded by others. 

This case is nominally about Mississippi’s one remaining abortion clinic, which wants to keep providing abortions into the 16th week of pregnancy, beyond the limit of a new state law.

But it’s much bigger than that. 

Dobbs v. Jackson Women’s Health could end abortion’s status as a constitutional right into the sixth month, before a fetus becomes capable of surviving outside the womb.

Here are five takeaways from that hearing:

A man holds a banner during a protest outside the Supreme Court on Wednesday. (Evelyn Hockstein/Reuters)

Access likely to be curtailed

It would be a shocker if the court’s 6-3 conservative majority did not side, at least in part, against the clinic.

Mississippi’s solicitor general opened the hearing saying 1973’s Roe v. Wade and 1992’s related Planned Parenthood v. Casey cases “haunt” the country. 

“They have no basis in the constitution; they have no home in our history or our traditions. They’ve damaged the democratic process,” said Scott Stewart. 

He argued that past generations of judges overstepped in abortion cases and should have allowed elected officials in the states to set the rules.

He received virtually no pushback from the court’s conservatives. In fact, some of their questions gave him openings to make his case.

Mississippi’s only abortion clinic, Jackson Women’s Health Organization, is at the centre of this case. (Rory Doyle/Reuters)

One legal historian says it’s telling that the court decided to hear this case. Mary Ziegler of Florida State University says it didn’t have to hear Mississippi’s appeal of the lower-court decisions against it.

The Supreme Court “reached out to choose this case,” she told CBC’s Front Burner podcast, predicting an at-least partial overturning of Roe v. Wade. 

“That’s going to mean a sea change in U.S. law and practice.” 

Roe v. Wade could be partly preserved

Some comments from the court’s conservatives hinted at one clear possibility: that they might weaken Roe v. Wade but not completely overturn the decision, which has high public support according to poll after poll.

The newest member of the court once flat-out predicted that’s what would happen. In a public talk in 2016, before Donald Trump appointed her, Amy Coney Barrett suggested a more conservative court would let states play a bigger role.

An anti-abortion activist protests outside the Supreme Court on Wednesday. (Jonathan Ernst/Reuters)

“I don’t think abortion, or the right to abortion, would change. I think some of the restrictions would change,” she said. 

“I think the question is how much freedom the court is willing to let states have in regulating abortion.”

So it was intriguing to hear some of the comments from the other justices along those same lines.

Chief Justice John Roberts at one point opined that this case is not about ending abortion, but shaving back the guaranteed access by a few weeks, to 15 weeks — “not a dramatic departure,” he said, from the current standard of fetal viability at roughly 24 weeks.

Other judges made similar comments. Clarence Thomas asked Stewart what alternative he might suggest to overturning Roe v. Wade. Stewart suggested dropping the fetal-viability standard in favour of another benchmark

Brett Kavanaugh also asked a series of rhetorical questions seemingly aimed at making clear abortion won’t end entirely: “You’re not arguing that we have the right to prohibit abortion, correct?” 

U.S. researchers Caitlin Myers, Rachel Jones, and Ushma Upadhyay in 2019 produced research on how abortion rates would decline in certain parts of the country if Roe v. Wade were struck down. (CBC)

Hodge-podge ahead

What future is the U.S. heading toward? Another comment from Kavanaugh revealed the likeliest scenario for U.S. abortion laws: a hodge-podge. 

Abortion access already varies widely between states and the gap will likely grow. Some states could continue to freely allow abortion, he said: “Many states, some states, would be able to do that?”

The corollary of that? Many states won’t.

That would create archipelagos of abortion access, while vast parts of the U.S. would have tight restrictions forcing women to leave if they want a procedure.

The extent of the change depends on the details of the decision: 

If Roe were entirely struck down, about two dozen states already have laws, or have promised laws, that would curtail or end abortion access.

“In a large swath of the United States abortion would be illegal,” Ziegler said.

Members of the court’s minority liberal wing — Elena Kagan, Sonia Sotomayor and Stephen Breyer, seen here in 2017 — have expressed frustration that abortion precedent might be overturned. (Carlos Barria/Reuters)

The heaviest impact will be on poorer women, Rikelman argued, citing studies presented to the court that abortion access had expanded economic opportunity.

“Two generations have now relied on this right,” she said.

Broader legal issues at stake

This case isn’t just about abortion. It involves big constitutional questions that touch on numerous cases.

One of the biggest questions involves how expansively to interpret the post-slavery 14th Amendment and its guaranteed rights to life, liberty, property and due process.

A broad interpretation has led to multiple landmark decisions, from the right to an abortion in Roe v. Wade, to contraceptioninterracial marriage and same-sex rights.

Mississippi’s supporters argue the amendment was never intended to apply to abortion, since abortion bans existed when it was enacted in 1868. 

That raises one of the broadest questions of all: to what extent judges can, and should, interpret old texts to confer rights not explicitly mentioned.

One of the liberal judges, Sonia Sotomayor, called it preposterous to suggest courts can’t interpret texts to include rights not mentioned therein.

After all, she said, the original constitution doesn’t even grant the Supreme Court the final word on what the constitution means, but that standard was built over time.

Sotomayor also made a bleak prediction about the future of the court — that it will lose credibility forever if there’s a sense political appointees have undone established law.

“Will this institution survive the stench that this creates?” Sotomayor asked.

June Rowe of Arlington, Mass, stood in front of the Supreme Court during the hearing. She called it one of the saddest days of her life. (CBC)

On the question of jurisprudence, Kavanaugh countered that it’s perfectly reasonable for one court to overturn decisions made by past ones.

In fact, he said, it’s a good thing.

That’s what gave Americans school desegregation in the Brown v. Board of Education case, he said; and one person, one vote; the right to regulate business with a minimum wage, Miranda rights for suspects; and other legal freedoms up to same-sex marriage.

2022: Hot summer ahead

Prepare for a hot political summer next year.

The court will announce its decision by June, the end of the current session. That means abortion access could become an election issue, as campaigns ramp up for the November midterms.

Control of Congress matters to future cases: the Senate is up for grabs, and it’s the Senate that has the power to confirm judges nominated by the president.

Abortion will persist as an issue, Ziegler predicted: Both sides, she said, will keep pushing to restrict or expand access.

Associate Justice Clarence Thomas raised the question of what might happen if the court stops short of fully overturning Roe v. Wade. ( Erin Schaff/Reuters)



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