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5 takeaways from the Supreme Court abortion showdown

Roberts seeks compromise, but can’t find a taker

As many expected, Chief Justice John Roberts called for compromise. But no one else – neither lawyers on both sides nor the other judges – seemed interested in buying what Roberts was selling.

Roberts suggested that Mississippi’s law banning abortion after 15 weeks pregnant was really not too restrictive on women’s rights and that the court could enforce it without overturning Roe vs. Wade.

“Why is 15 weeks not enough? Asked the chief justice, arguing that a new standard of 15 weeks is not “a dramatic departure” from the current limit of fetal viability, which occurs around 24 weeks of pregnancy.

This proposal did not seem to satisfy anyone.

“It is not an enforceable standard and it is not a constitutional standard,” said Julie Rikelman, an attorney at the Center for Reproductive Rights who represented Mississippi’s only remaining abortion clinic in oral argument. She argued that such a decision would effectively give states the green light to enact total procedural bans.

“Without viability there will be no stopping point,” she said.

Solicitor General Elizabeth Prelogar agreed, warning the court that approving a 15-week ban without spelling out a clear legal principle would lead to an avalanche of state laws testing whether previous bans were also close enough to viability for pass the constitutional rally.

Many states, including Mississippi, already have such laws on the books – waiting for judges to reduce abortion rights.

“If that were to happen, states immediately with six-week bans, eight-week bans, ten-week bans, and so on. “said Prélogar.

Mississippi Solicitor General Scott Stewart also sought to steer judges away from common ground, arguing that the “excessive demand” test, which was established 30 years ago in Planned Parenthood v. Casey, turned out pasty.

“It’s a very difficult standard to apply. It’s not objective, ”said Stewart. “I think that’s one of the very good reasons to go through with it and cancel Roe deer and Casey. “

Have times really changed for women since 1973 and does it matter?

Mississippi lawyers focused on how society has changed over the past 50 years Roe deer was decided and said that should force a reconsideration of the decision.

“In 1973, there was little support for women who wanted a full family life and successful career,” the state attorney general wrote in her brief. “Maternity leave was rare. Paternity leave was unknown. The gold standard for career success was a 9 to 5 with a desk area. The flexibility of the concert economy was a fairy tale.

The solicitor general of the state insisted on this point on Wednesday, declaring: “Contraception is more accessible, affordable and available than it was during the days of Roe deer Where Casey. “

Lawyers for the Mississippi Clinic and the Department of Justice categorically rejected these arguments.

Prelogar pointed out that “contraceptives existed in 1973 and 1992, and the court nevertheless recognized that unintended pregnancies would persist and deeply involve the interests of women’s liberty”. She also highlighted the struggle of low-income people to afford contraceptives and the low but significant rate of failure as additional reasons for maintaining access to abortion.

A similar back-and-forth has ensued over the more recent proliferation of so-called “shelter” laws that allow people to give babies up for adoption, as Justice Amy Coney Barrett suggested reducing the need for abortions – an argument Rikelman dismissed as irrelevant to the central issue.

Judge Elena Kagan said specific legal and cultural changes were irrelevant as the fundamental question of a person’s right to decide whether or not to continue a pregnancy remains the same as in 1973.

“In the end, we are exactly where we were then, except that we are not because there have been 50 years of water under the bridges, 50 years of decisions saying that it is part of our right, that it’s part of the fabric of women’s existence in this country, ”she said.

Is abortion fundamentally different from other rights? What else would be on the chopping block if Roe deer falls?

Abortion rights advocates have warned that the cancellation Deer, and with little respect for precedent, could lead to an upheaval in US law, lowering the bar for what it would take to overturn other important decisions.

Judge Sonia Sotomayor said the 2015 high court Obergefell vs. Hodges a decision supporting the right to same-sex marriage, and a 1960s decision supporting a right to contraception, are among those that could easily be overturned – especially since the rights defended in these decisions, such as abortion, are not not explicitly mentioned in the Constitution.

“They are just as wrong, according to your theory,” Sotomayor told Stewart. “I just think you dissent when you say that no decision here would have any effect on these.”

The Mississippi Solicitor General noted this Roe deer and Casey are different from other decisions because they remain controversial.

Stewart also asserted that abortion rights are different from all others under the law because they involve “taking your life.”

Abortion rights groups countered that the overthrow Roe deer would be radically different from overturning, say, precedents in favor of segregation, because it involves a contraction rather than an expansion of individual rights.

Elsewhere in Wednesday’s arguments, Conservative justices raised the issue of the rights of the fetus itself and the need to balance them with the rights of the pregnant person.

Fears of illegitimacy: How will the court’s decision affect the institution’s already grim public view?

Many actors during Wednesday’s arguments appeared concerned that the case could exacerbate public perception that the tribunal is politically motivated.

Liberal judges said ignoring the abortion precedent based almost entirely on a change in its ideological makeup would seriously damage its position in American society, while conservative judges said the best way for it to be court to maintain its credibility with Americans with different opinions on abortion was to send the matter back to the states.

Kagan said it was important “to prevent people from thinking that this Court is a political institution that comes and goes depending on which part of the public shouts the loudest and prevents people from thinking that the Court is going to go. and come according to changes in the composition of the Court.

She added that many actions taken by the court to set aside precedents were motivated by the conclusion that they were based on a misunderstanding or on new facts drawn from experience.

“Not much has changed since Roe deer and Casey“Kagan said.” People think it’s right or wrong depending on the things they always thought was right or wrong. “

Judge Brett Kavanaugh suggested that the tensions in the case – and the underlying trade-off between the life of a pregnant person and a fetus – called for those rulings to be made to individual states.

“Why should this court be the arbiter rather than Congress, state legislatures, state supreme courts, the people being able to resolve this issue?” And there will be different answers in Mississippi and New York, different answers in Alabama than in California, because those are two different interests at stake and the people of those states might assess those interests a little differently, “Kavanaugh said. .

In recent years, Roberts has appeared concerned with preserving the tribunal’s credibility by downplaying potentially controversial decisions, but said that may not always be the best approach.

“It is certainly true that we cannot base our decision on their popularity with the people,” said Roberts, before criticizing some of the Supreme Court’s precedent in Planned Parenthood v. Casey. “It seemed to me to have a paradoxical conclusion that the more unpopular the decisions, the more the Court should be firm in not deviating from previous precedents – a sort of super stare decisis, but it is a super stare decisis for that. which is considered by many to be the most wrong decisions.

Overthrowing Roe wouldn’t stop the abortion wars. It would make them ramp up.

Pushing the Supreme Court to limit abortion rights, conservative justices, lawyers and lawmakers have argued that a ruling upholding Mississippi’s 15-week ban or even overturning Roe vs. Wade would calm down the procedural struggles that have rocked the country for decades.

Kavanaugh suggested that the tribunal “should return to a position of neutrality on this controversial social issue rather than continue to choose sides,” which he intended to abolish Roe deer and allow states to decide whether and how to ban abortion.

Senator Bill Cassidy (R-La.) Is among several GOP lawmakers echoing the sentiment, telling reporters on Capitol Hill earlier this week that “Mississippi law actually has the ability to bring Americans together” because she divides the difference between people who want abortion totally banned and those who don’t want any restriction on the procedure.

But advocates on both sides of the case have made it clear that such a move will only fuel the ongoing battle. Many right-wing groups are already pushing for sweeping state-level bans in anticipation of Roe deer fall, while left-wing groups say they would continue to fight for access to abortion with all of their remaining legal rights at state and federal levels.

Ryan Anderson, president of the Conservative Center for Ethics and Public Policy, pointed out that a stunning decision Roe vs. Wade would not implement the policies favored by the social conservatives, would simply create an opportunity to lobby for them.

“This is not the end of the pro-life movement. This is the start of the pro-life movement, ”he said. “This is an opportunity for pro-lifers at the political level to pass good laws.”

Rikelman said her company and others “will not stop trying to fight for the ability of women to make this decision” and are preparing to use federal and state laws on privacy, equality of rights. gender and personal freedom to fight against the expected wave of new prohibitions. They and other groups are also pushing state and federal lawmakers to adopt abortion rights protections. Roe deer to be knocked down.

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