On abortion, SCOTUS set to overturn decades of wrong
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 out of 42 of European nations, including France and Germany, bar elective abortions at 15 weeks or less.
Mississippi has passed a law that effectively declares: We prefer to keep company with France and Germany than 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.
Remarkably, in Wednesday’s oral arguments, none of the liberal justices made any substantive arguments to defend Roe or Casey. Instead, they argued politics and process. They said overturning Roe and Casey would, in Justice Sonia Sotomayor’s words, create a political “stench” that 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.
They argued process — that the principle of stare decisis (Latin for “to stand by things decided”) requires the court not to reverse its previous 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, because if they weren’t wrong, you wouldn’t need stare decisis.”
Justice Brett M. Kavanaugh pointed out that many of the court’s most consequential decisions 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 .... ”
So, what will the court do? It seems unimaginable that the court will declare Mississippi’s law unconstitutional. The second option is that sought by Justice Clarence Thomas: The court strikes down Roe and Casey, declaring that these decisions are so egregiously wrong that they must be overturned.
A third option, which Chief Justice John G. Roberts Jr. seemed to be suggesting, is to find some middle ground in which the court upholds Mississippi’s law without overturning Roe and Casey.
The problem for Roberts is that Casey declared that before viability, states cannot prohibit abortion. And no one argues that an unborn child is viable at 15 weeks. That did not stop Roberts from floating a re-conception of Casey that erased the viability line.
“Viability, it seems to me, doesn’t have anything to do with choice,” he said. “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 return to ask it to rule whether 12 weeks, or 10, is “enough time.”
The good news is: With Barrett’s appointment, 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.