Supreme Court hears abortion case challenging Roe v. Wade

The Supreme Court seemed poised Wednesday to uphold a Mississippi law that bars abortion after 15 weeks, but it is less clear if there is a clear majority to end the right to abortion nationwide, although conservative justices expressed skepticism about the landmark Roe v. Wade decision.

The dispute represents the culmination of a decades-long effort on the part of critics of the landmark opinion that legalized abortion nationwide to return the issue to the states, a move that would almost immediately eviscerate abortion rights in large swaths of the South and the Midwest.

What the justices said: Chief Justice John Roberts seemed to be looking for a middle ground to allow states to ban abortion earlier — moving up the viability line from the current 22 to 23 weeks — but leaving in place some remnants of a woman’s right to end a pregnancy. He said 15 weeks was not a “dramatic departure” from viability.

Another key justice, Brett Kavanaugh, however, noted that even if the issue were returned to the states, abortion would still be available in some of those states. He conceded that supporters of abortion rights have a “forceful argument” but asked if there were two interests at stake, why the court should be the arbiter.

The court’s other four conservatives were clearly critical of 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey, which enshrined the right to abortions nationwide. Sixty percent of Americans say Roe should be upheld, according to an ABC News/Washington Post poll conducted in November.

Liberal Justice Sonia Sotomayor spent several minutes attacking the arguments of Mississippi’s solicitor general, strenuously arguing that a woman’s right to an abortion has been on the books for nearly 50 years and had been repeatedly reaffirmed. She suggested that if the court were to overturn the decision now despite the fact that “15 justices over 50 years” have reaffirmed the decision, it would suggest the change was solely due to the new composition of the court.

Why this matters: The very fact that the current court, with its solid six-member conservative majority, agreed to even consider a state law that bars abortion long before viability suggests that the court — bolstered by three of former President Donald Trump’s appointees — is poised to scale back court precedent if not reverse it outright. Already, in a separate dispute, the court is considering a Texas law that bars the procedure after six weeks and the justices have allowed that law to remain in place for three months, rendering Roe a dead letter in the country’s second largest state.

What happens next: This week, the nine justices will sit alone in a conference room and go over the case. They’ll go in order, with Chief Justice John Roberts explaining his vote and reasoning, then following by seniority: Clarence Thomas (conservative), Stephen Breyer (the senior liberal), Samuel Alito (conservative), Sonia Sotomayor (liberal), Elena Kagan (liberal), Neil Gorsuch (conservative), Brett Kavanaugh (conservative) and Amy Coney Barrett (conservative).

The senior justice in the majority and minority will get to choose who writes the opinion, a process that will take months, with plenty of drafts going back and forth between chambers, and rarely, a vote change.

Abortion rights advocates and anti-abortion protesters demonstrate in front of the US Supreme Court in Washington, DC, on December 1.

As oral arguments about Mississippi’s abortion law wrapped up, outside the Supreme Court anti-abortion and pro-abortion supporters agreed that no matter what decision is made, communities of color will be affected.

Mavourene Robinson, who stood outside the court with dozens of other anti-abortion supporters, says that the idea that having abortions will reduce poverty across the country is not accurate.

The Mississippi law that the justices heard today doesn’t allow women to have abortions after 15 weeks. 

Mary Beth Style, who is a pregnancy counselor and anti-abortion, says women really don’t want to have abortions, they “feel that they have not choice” and are “pushed against the wall to do that.”

“We need to have services for women,” Style said.

Trish Gallagher said that the decision that the justices will have to make will not be an easy one, but regardless, women will continue to get pregnant, and abortions will happen anyway like they use to 50 years ago — by going to other countries or risking their life with a hanger. 

Latice Hicks, who is anti-abortion from Kansas City, Missouri, says that being in Washington, DC, for the oral arguments was more important to her as a Black woman.

“Abortion has been targeted against the African American race as we all know there are Planned Parenthoods in the Black community which is to stop and stump the growth of the Black community,” Hicks said.

President Biden declined to say if he was concerned the Supreme Court would roll back abortion rights after oral arguments Wednesday indicated the court was likely to uphold a Mississippi law that bars abortion after 15 weeks.

“First of all, I haven’t — I didn’t see any of the debate today, the presentation today,” Biden told reporters at the White House.

“And I support Roe v. Wade, I think it’s a rational position to take, and I continue to support it,” he said.

More on the Roe V. Wade decision: The 1973 ruling guaranteed a woman’s right to obtain an abortion nationwide, using a trimester approach.

For the first trimester of pregnancy, the court said the abortion decision should be left to the woman and her physician; for the second trimester, a state could regulate the abortion procedure in ways reasonably related to the woman’s health; for the final trimester, after fetal viability, the state could promote its “important and legitimate interest in potential life” and ban abortion except when necessary for the woman’s life or health.

CNN’s Dan Berman and Ariane de Vogue contributed reporting to this post. 

The arguments presented by the Mississippi solicitor general and the questioning by the recently appointed conservative Supreme Court justices are an example of a “very strategic legal strategy and political strategy that has been in the work for decades,” said CNN’s Dana Bash.

She added that many conservatives continue to support former President Donald Trump because of his appointments to the Supreme Court.

“If you want to know politically why so many conservatives to this day stick by Donald Trump, it’s because of what we heard in the court today, the questioning by his three nominees were exactly what they were going for. We don’t know how they’re going to decide. But certainly they left some very big bread crumbs as to where they’re headed,” Bash explained.

The oral arguments have concluded, and the Supreme Court will now take the case under consideration.

This week, the nine will sit alone in a conference room and go over the case.

They’ll go in order, with Chief Justice John Roberts explaining his vote and reasoning, then following by seniority: Clarence Thomas (conservative), Stephen Breyer (the senior liberal), Samuel Alito (conservative), Sonia Sotomayor (liberal), Elena Kagan (liberal), Neil Gorsuch (conservative), Brett Kavanaugh (conservative) and Amy Coney Barrett (conservative).

All justices have publicly described this process as orderly and collegial.

Remember, their views are often known going in and what’s going to matter is the language in the final opinion. The senior justice in the majority and minority will get to choose who writes the opinion, a process that will take months, with plenty of drafts going back and forth between chambers, and rarely, a vote change.

Most famously, Roberts changed his vote to uphold Obamacare in 2012, after initially deciding to kill it.

Justice Amy Coney Barrett returned to a theme she has asked repeatedly about during today’s hearing, asking how the growing availability of adoption — via so-called “safe haven” laws — changes the reliance interest.

US Solicitor General Elizabeth Prelogar said that there is “nothing new.” Her question wraps up Prelogar’s argument period and Mississippi Solicitor General Scott Stewart, when stepped up for a brief rebuttal, seized on Barrett’s question.

He said the rise of “safe haven” laws relieve a “huge burden.”

Stewart finished his rebuttal without any additional questions from the court.

The hearing ended after the rebuttal, having lasted just under two hours.

Chief Justice John Roberts asked another question suggesting he is looking to find a way to uphold the 15-week abortion ban without reversing Roe v. Wade outright.

He returned the discussion to the reliance interests, and asked US Solicitor General Elizabeth Prelogar, the Biden administration’s top lawyer before the Supreme Court,  whether her reliance interest arguments were as strong when considered just against a 15- week ban, rather than a law that prohibition abortion outright.

Prelogar said if that the court were to rule the way Mississippi is asking it to — by reversing the liberty interest or leaving it up the air — states would rush to limit abortions much earlier than 15 weeks into the pregnancy.

“The thing that is at issue before us today is 15 weeks,” Roberts shot back. 

US Solicitor General Elizabeth Prelogar, the Biden administration’s top lawyer before the Supreme Court, is arguing against the court disrupting Roe v. Wade, saying people have relied on the right to an abortion for nearly 50 years.

“If this court renounces the liberty interest recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis,” she continued.

“The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society,” Prelogar told the justices.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett have asked relative softballs of Mississippi Solicitor General Scott Stewart and been tough on Julie Rikelman, a lawyer representing Jackson Women’s Health Organization.

Barrett asked about “safe haven laws,” and women’s ability to give up children for adoption.

Thomas, who has lobbied to overturn Roe v. Wade for years, has been direct in asking if there’s a constitutional basis for allowing abortion.

The court’s three liberals are expected to absolutely vote to uphold Roe.

But Chief Justice John Roberts and Justice Brett Kavanaugh may be searching for a middle ground.

Roberts suggested the court could look at Mississippi’s 15-week law as a new viability standard, rather than Roe and Casey, which is over 20 weeks. And Kavanaugh, meanwhile, has asked to confirm that Mississippi isn’t asking the court to outright prohibit abortion, a way to say it’s not overturning Roe while limiting access.

Kavanaugh asked another set of questions suggesting he is inclined to rule with Mississippi and even go as far as reverse Roe.

In broad strokes, he sums up Mississippi’s argument asking the court to interpret the Constitution as neutral on abortion, and to return the issue to state or Congress. He asked Rikelman to respond.

Then he asked a question about stare decisis, ticking off several “consequential” decisions — including on school segregation, voting rights, and business regulations — where the court overturned precedent.

If the court had listened to the arguments that it should adhere to precedent in those cases, “the country would be a much different place,” Kavanaugh said.

Justice Sonia Sotomayor shot back at Kavanaugh’s question that cited several court decisions that overturned precedent. Most of those cases, Sotomayor said, were “us recognizing and overturning state control over issues that we said belong to individuals.”

Breyer also took issue with the list of cases Kavanaugh cited.

CNN’s Tierney Sneed contributed reporting to this post.

Justice Samuel Alito dug in on whether viability is an appropriate line for the court to have drawn.

“The fetus has an interest in having a life,” Alito said, and that doesn’t change between before and after viability.

“What is the secular philosophical argument for saying this is the appropriate line?” Alito asked.

Julie Rikelman, a lawyer representing Jackson Women’s Health Organization, the only licensed abortion clinic in the state, said that the line is “objectively verifiable” and doesn’t require the court to resolve the philosophical questions.