Supreme Court abortion case: Justices grill lawyers on precedent, fetal viability, constitutional rights

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Notable takeaways from the Supreme Court oral arguments on Mississippi's abortion law

Former assistant U.S. attorney Andrew McCarthy and constitutional law professor Jonathan Turley provide reaction and analysis as the U.S. Supreme Court hears oral arguments in a case that challenges Roe v. Wade

The Supreme Court heard oral arguments in a potential landmark abortion rights case Wednesday, as the state of Mississippi defended an abortion restriction law that directly challenges Roe v. Wade.

The case, Dobbs v. Jackson Women's Health, centers on the law, which bans most abortions after 15 weeks of pregnancy, much sooner than the current legal standard, which prohibits abortion bans prior to fetal viability — roughly 23 to 24 weeks into pregnancy.

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Throughout the arguments, the justices alternated between examining not just the legal standards for abortion laws based on interests of women and protecting potential life, but also the court’s own interest in protecting itself from losing the faith of the public.

Pro and anti-abortion activists gather outside the Supreme Court. (Fox News Digital)

"[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question," Justice Stephen Breyer said, quoting the opinion in 1992's Planned Parenthood v. Casey.

Justice Amy Coney Barrett also pointed to how Casey "very explicitly took into account" public reaction. She asked if there should be a special standard for overturning cases of particular importance.

Mississippi Solicitor General Scott Stewart said there should not. He argued that while Casey was "unusual" and "a mistake," the court could say now that their legitimacy comes from standing for constitutional principles and overruling when appropriate.

Breyer later pointed to Barrett’s discussion of public reaction, and warned that in watershed cases where people are "really opposed on both sides," no matter how the court rules there will be accusations of politicization.

An anti-abortion activist attends a protest outside the Supreme Court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women's Health, in Washington, Dec. 1, 2021.  (REUTERS/Jonathan Ernst)

"That’s what kills us as an institution," he said, arguing that if the court is going to overturn such a case, "you better be damn sure that the normal stare decisis" elements are analyzed with a clear conclusion that the case warrants overturning.

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Justice Sonia Sotomayor noted that a woman’s right to get an abortion has been "clearly set" and never challenged since Casey, and how over 50 years there have been 15 justices who ruled in favor of a right to abortion compared to four against, and that the sponsors of the Mississippi law came right out and said they were introducing the bill because there are new justices on the high court.

"Will this institution survive the stench that this creates in the public perception … that the Constitution and its reading are just political acts?" she asked.

Stewart said that the court’s concern about appearing political means that they should base their decision on the Constitution. Sotomayor said that Casey did this, even if Stewart does not think so.

"Casey gave one paragraph to the workability of Roe," Stewart responded, adding that the decision then went into the undue burden standard, which Stewart called "the most unworkable" legal standard in history.

Stewart then added that Casey did not take into account advancement in medical knowledge. When asked what advancements have taken place since Casey, he pointed to studies on fetal pain, which Sotomayor dismissed as being from "a small fringe of doctors" and not a signal of an actual advancement of knowledge. She noted that brain dead people have responded to stimuli, so a fetal response does not necessarily mean anything.

Returning to the viability line, Stewart said it was "quintessentially legislative." He later argued that this line discounts the state interest in protecting human life.

Pro-abortion rights activist Alicia Hurt holds a placard during a protest outside the Supreme Court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women's Health, in Washington, Dec. 1, 2021. (REUTERS/Evelyn Hockstein)

Justice Elena Kagan questioned whether his viewpoint of when life begins is a religious one. Stewart insisted that it is not, and that regardless of when life begins, it is still a "human organism" involved.

Stewart said there are difficult questions involved in the abortion debate, and that "the people should get to debate these hard issues."

When asked when the interest of the woman enters the equation, Stewart said that it is always there but that Roe and Casey changed this by putting in a viability line that eliminates the unborn child’s interest pre-viability.

Justice Brett Kavanaugh asked Stewart to clarify that he is not arguing for the court to make abortion illegal, but should remain neutral on the issue and let the states handle it.

"Allows all interests to have full voice," Stewart said.

Kagan asked how the court should handle abortion cases if the viability line was eliminated and it was just a blanket undue burden standard throughout pregnancy. Stewart admitted that this would be difficult, which is why his preference is for Roe and Casey to be overturned entirely.

Julie Rikelman, representing Jackson Women’s Health, argued that an undue burden test "would not be workable" without the viability line. She also claimed that the undue burden test does not even apply to this case because the Mississippi law is not a restriction on abortions but a flat out ban after 15 weeks. Therefore, she said, the viability line is the only issue.

Julia Rikelman, left, in 2018.  (Lars Niki/Getty Images for Center For Reproductive Rights)

Justice Samuel Alito asked Rikelman to defend the viability line against the argument that it is "arbitrary." Pointing to a woman’s interest in being free of the burden of pregnancy, he asked whether that interest is still there post-viability. Similarly, he argued, a fetus’ interest in life is there pre-viability.

Alito asserted that this comes down to a philosophical debate. Rikelman said the viability line is good because it does not ask the court to settle that debate. Later on, she said that the viability line makes sense because once the court recognizes the woman’s interest they need a line for balancing interests — viability provides a line by giving a marker when the fetus can survive.

U.S. Solicitor General Elizabeth Prelogar, who also delivered arguments Wednesday, agreed that the viability line is the most useful standard. Justice Neil Gorsuch asked whether some other standard could be used if the court did away with viability.

"I don’t think there’s any line that could be more principled than viability," Prelogar said.

A pro-choice activist held this sign outside the Supreme Court as oral arguments in Dobbs v. Jackson began (Fox News Digital)

Justice Clarence Thomas focused on the broad constitutional principles involved and what Rikelman was relying on. Early in her presentation Thomas asked her if she was relying on the theory of autonomy. She said she was looking to that as well as bodily integrity. Later on, Thomas asked what particular constitutional right protects abortion.

"It’s liberty," Rikelman said.

Discussing liberty with Kavanaugh, Rikelman noted that liberty has in the past been held to include marriage, child-bearing, and family. The argument is that this includes abortion as part of family decision-making.

Without that, she said, women "will never have equal status under the Constitution."

Throughout the hearing, Stewart emphasized the need to allow states – via the people – to decide on abortion because of its complex nature. 

"Abortion is a hard issue," he said at the beginning of his presentation. "Roe and Casey have failed but the people, if given the chance, will succeed."

He echoed this at the conclusion of the hearing. 

"There are interests here on both sides," he said. "There are interests for everyone involved. This is unique for the woman, it’s unique for the unborn child too, whose life is at stake in all of these decisions. It’s unique for us as a society in how we decide if the states get to legislate on this issue, how to decide, and how to weigh these tremendously momentous issues."

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Protesters gathered outside the Supreme Court on Wednesday before arguments began. Some, from the group Shout Your Abortion, staged a demonstration where they claimed to be taking abortion pills, chanting, "Abortion pills forever." The group did not immediately respond to Fox News’ request for comment on the video and protest.  

Pro-life protesters also gathered outside the protest, with some chanting, "Hey hey, ho ho, Roe v. Wade has got to go."

Fox News' Emma Colton and Tyler Olson contributed to this report.