Supreme Court set to overturn decades of abortion wrongs
WASHINGTON — The United States is one of just seven out of 198 countries that allow elective abortions after 20 weeks of pregnancy. Two of the others are China and North Korea. By contrast, 39 of 42 of European nations — including France and Germany — bar elective abortions at 15 weeks or less, though with broader exceptions than typically seen in the U.S. Not one permits them through all nine months of pregnancy, as do seven states (including New Mexico) and the District of Columbia. The state of Mississippi has passed a law that effectively declares: We prefer to keep company with France and Germany than with China and North Korea. Now, the Supreme Court will decide whether Mississippi can restrict abortion to 15 weeks, as most civilized nations do. To do so, the justices must overturn Roe v. Wade and Casey v. Planned Parenthood, which created a right to abortion that exists nowhere in our Constitution, and return the question to the states, where it belongs.
In Wednesday’s oral arguments, none of the liberal justices made any substantive arguments to defend Roe or Casey as rightly decided. Instead, they argued politics and process. First, they said overturning Roe and Casey would, in Justice Sonia Sotomayor’s words, create a political “stench” the court might not “survive.” But the job of a Supreme Court justice is to decide cases based solely on the law and the Constitution, not politics. Doing otherwise is precisely what damages its credibility.
Second, they argued the principle of stare decisis, Latin for “to stand by things decided,” requires the court not to reverse its previous Roe and Casey decisions. But, as John Yoo, professor of law at the University of California at Berkeley, explains, stare decisis is usually used to “defend decisions you know to be wrong.” ... Indeed, Justice Brett M. Kavanaugh pointed out many of the court’s most consequential decisions — celebrated by liberals — overruled precedent in cases that were wrongly decided. “Brown v. Board outlawed separate but equal,” he said, “Baker v. Carr, which set the stage for one person, one vote. … Miranda v. Arizona, which required police to give warnings … about the right to remain silent. … Lawrence v. Texas, which said the state may not prohibit same-sex conduct. … Gideon v. Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage.” Had the court adhered to stare decisis in those cases, “the country would be a much different place.”
Perhaps the most stunning moment came when Justice Samuel A. Alito Jr. asked Solicitor General Elizabeth B. Prelogar if the court’s decision in Plessy v. Ferguson, which upheld racial segregation, were reargued in 1897, “would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?” ... She finally said, “This court, no, has never overruled in that situation … based on a conclusion the decision was wrong.” When you argue stare decisis would require the court to uphold Jim Crow, you are losing.
So, what will the court do? Based on Wednesday’s arguments, it seems unimaginable the court will declare Mississippi’s law unconstitutional. The second option, sought by Justice Clarence Thomas and likely supported by Justices Alito, Neil M. Gorsuch and Amy Coney Barrett: Strike down Roe and Casey, declaring those, like Plessy, so egregiously wrong they must be overturned.
A third option, which Chief Justice John G. Roberts Jr . ... seemed to suggest, is to find some Solomonic middle ground in which the court upholds Mississippi’s law without overturning Roe and Casey. The problem is Casey declared states cannot prohibit abortion or create an “undue burden” for accessing it through regulations before viability, and no one argues an unborn child is viable at 15 weeks. That did not stop Roberts from floating a reconception of Casey that erased the viability line . ... “If it really is an issue about choice, why is 15 weeks not enough time?” But if the court arbitrarily sets the line at 15 weeks, states will soon ask it whether 12 weeks, or 10, is “enough time.” ...
... Roberts is no longer the deciding swing vote. To prevail, he needs to persuade another conservative, such as Kavanaugh, to go along. And, in oral arguments, it did not look like Kavanaugh was biting. “If we think that the prior precedents are seriously wrong,” Kavanaugh asked, “why, then, doesn’t the history of this court’s practice ... tell us that the right answer is actually a return to the position of neutrality?” It is. And the decision is likely in Kavanaugh’s hands.