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US Supreme Court: Litmus Test

The US Supreme Court recently heard arguments on a Mississippi law that potentially threatens the right of a woman to obtain—for whatever reason—an abortion to end a pregnancy.

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By Kenneth Tiven in Washington

This long running divide in American politics has become a toxic stew of religion and women’s rights, amped up with conservative versus liberal ideology. Opponents of vaccine mandates and masking rules appear immune to the contradiction of opposing government intrusion into personal freedom with the desire to regulate what women can and cannot do with personal health issues.

The Supreme Court’s ruling probably will come in late spring or early summer of 2022, right in the midst of Congressional elections. The matter took two hours with audio of the question and answers streamed. It is unclear how draconian a ruling against abortion might be. Would it absolutely overrun Roe vs Wade’s conclusion that women have a fundamental right to end their pregnancies? Will Roe go into history as merely a temporary nod to women’s right to control their own bodies? 

Any middle ground is not pretty. With Roe vs Wade still existing, it will be legally attacked by state legislatures eager to protect a fetus rather than to provide assistance to very young children.

The six conservatives making up the Court’s new majority did not voice any desire to maintain the current 22 to 24 week window for an abortion before a fetus is viable outside the womb. State legislatures writing restrictive abortion laws have made it publicly clear that legal success was possible now because of a new conservative majority in the highest court.

The Court’s liberal justices said that the institution’s reputation would be irreparably damaged if nearly a half-century of its abortion jurisprudence was dismantled because of a change in membership. Solicitor General Elizabeth Pre­logar representing the Biden Administration pointed out that the Court had never revoked a constitutional right it had extended.

“Will this institution survive the stench this creates in the public perception, that the Constitution and its reading are just political acts?” asked Justice Sonia Sotomayor. “If people believe this is all politics, how will we survive? How will this court survive?” She had sharply questioned Mississippi Solicitor General Scott Stewart who took the stand that the constitutional right to abortion has “no home in our history or tradition” and has resulted in “millions” of lives lost. This is the role for state legislatures, he said. In both tone and language, he seemed to be saying that the state didn’t want to lose children who might become potential taxpayers.

Since ancient time, the means of terminating a pregnancy have included certain herbs, the use of sharpened implements and the application of abdominal pressure. Murder of pregnant woman is also among the techniques. In the 20th century, the right to abortion improved in many nations as the issue of equality among the sexes gained legitimacy.

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The three newly Donald Trump appointed justices understand that the former president was “courting” his religious and most conservative voters with their appointments so the idea they might support this Mississippi law seems entirely rational.

However, anything less than a solid “NO abortions” isn’t enough for anti-abortion activists, as a full on ban has become a litmus test that outweighs any policy issues that might impact their lives in a positive manner. It is essentially a religious issue, especially for many evangelical Christian sects. Allowing legislatures to “take over” women’s bodies and force them “to remain pregnant and give birth against their will” is the likely result if the Court supports this law, said Julie Rikelman, a lawyer for the Center for Reproductive Rights representing Mississippi’s only abortion clinic.

Justice Brett Kavanaugh played the tough critic, berating Rikelman, for forcing the Court to make a big decision. This despite the fact that the petitioners (the state of Mississippi) were the ones asking for a judgment on abortion precedent when they appealed the case to the highest court in the first place. Kavanaugh framed it as a pick sides situation for the Court in what he called the most contentious social debate in American life. He described the no abortion position as requiring neutrality on a social issue,” rather than a freedom of choice issue. Exactly the same conundrum that animates the issues around fighting Covid-19.

The conservative justices made little or no effort to hide their feelings that this case is a challenge to Roe with few philosophical or medical concerns about overturning the Court’s own precedent. Obviously, they are aware of what abortion rights folks have been saying: There is no path for the Court to uphold both Roe and the Mississippi ban.

In Roe, the Supreme Court said women have a fundamental right to an abortion. The following Casey decision spelled out there could not be prohibitions on abortion before viability and that regulations on the right could not impose an “undue burden” on a woman’s choice.

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While overruling precedents was a major discussion, Chief Justice John Roberts hinted strongly at what he called the Court’s issue: whether all pre-viability prohibitions on elective abortions are unconstitutional. Robert pointed out that Justice Harry Blackmun, who wrote the Roe opinion, had said in his private papers that the viability line was arbitrary. Court observers said there was little support among the arguing lawyers or Robert’s judicial colleagues for what seemed to be a suggestion for compromise.

Historically, Roberts likes incremental steps when moving the law. The viability line has been cited across the country by judges who have struck down state prohibitions one after another that attempted to ban abortions earlier in pregnancy.

“In an unbroken line dating to Roe vs Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick E. Higginbotham wrote for the US Court of Appeals for the 5th Circuit majority that refused to allow the Mississippi law to take effect.

After oral arguments, feminist writer Jill Filipovich tweeted:

“The abortion debate in the US is so frustrating because the question of what decreases the abortion rate is a solved one. We know how to make abortions less common: Reliable affordable contraception + good sex ed. But prolifers don’t want to do what works, so we’re stuck here.”

The arguments boded well for the anti-abortion movement. “If you believe that women should have the right to choose abortion, today’s Supreme Court argument was a wall-to-wall disaster,” said CNN’s legal analyst Jeffrey Toobin.

In the coming weeks, the justices will cast tentative votes at a private conference. The senior justice in the majority can assign the majority opinion to a colleague or keep it. Draft opinions, including concurrences and dissents, will be exchanged. It usually takes the Court about three months after an argument to issue a decision, but the big cases often take longer. The decision in this one is expected in five months, when major rulings tend to arrive in rapid succession.

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Possible reasons for waiting so long to decide the biggest cases was discussed in 2015 in a law journal. Justices keep polishing the opinions that will define their legacies until the last possible moment. Secondly, releasing several major decisions in quick succession, especially if a mixed bag of some liberal and some conservative, “may tend to diffuse media coverage and other commentary of any particular case, and thus spare the justices unwanted criticism.”

A personality explanation was that the biggest decisions are apt to be divisive and bruising, and the justices may think it best to issue them just before they leave for their summer breaks.

The Washington Post columnist Alexandra Petri tried to explain the anxiety about the Court’s decision in other than legal terms. She described women in the US this way: “It had been so nice, thinking that she could go anywhere in the United States and the laws would have to acknowledge her right to decide whether she wanted to be pregnant, that any doctor who treated her could give her correct information about what risks she faced, that if her life were threatened, her life would carry weight. But no. Her rights were all the alienable kind, it turned out, and she was nothing more than a sort of empty clay jar into which, if she were sufficiently blessed, a person might one day be deposited. Her mistake!”

—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels

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