Supreme Court sounds ready to restrict the right to abortion

Abortion rights advocates and abortion opponents demonstrate in front of the Supreme Court building on Wednesday.

Dec. 1, 2021 Updated 3:38 PM PT

WASHINGTON — The Supreme Court’s conservatives sounded ready on Wednesday to severely restrict a woman’s right to choose abortion and possibly overturn Roe vs. Wade entirely.

The court now has six justices who are deeply skeptical of abortion rights. And during arguments about a Mississippi law banning abortions after 15 weeks of pregnancy, only Chief Justice John G. Roberts Jr. seemed interested in finding a narrow ruling.

The others — including Justices Brett M. Kavanaugh and Amy Coney Barrett, Trump appointees who some legal experts thought might join Roberts — sounded prepared to overturn the landmark 1973 Roe abortion ruling.

“The Constitution is neither pro-life nor pro-choice on abortion,” Kavanaugh said, adding the court should not “pick sides on the most contentious social debate in American life.”

Barrett said pregnant women who do not want to raise a young child can put the baby up for adoption. If so, she said, the lack of access to abortions should not have a great effect on their lives and careers.

The three liberal justices said the court would be making a great mistake to overturn its past rulings, including Roe and the 1992 decision in Planned Parenthood vs. Casey, which reaffirmed the right to abortion up to 24 weeks of a pregnancy.

They said that the facts on the ground related to abortion in the U.S. had not changed and that a reversal would be interpreted by Americans as a political move.

Justice Sonia Sotomayor warned that the court would not “survive the stench that this creates in the public perception.” That plea was probably directed at Roberts, who as chief justice has long attempted to move incrementally and preserve the court’s reputation for independence.

But the argument held little sway over other conservatives. Kavanaugh asserted that some of the court’s greatest rulings had overturned past precedents, including the Brown vs. Board of Education ruling in 1954, which overturned past rulings that upheld racial segregation.

Kavanaugh’s comments Wednesday differed starkly from those in his 2018 confirmation hearing, where he spoke of the importance of “settled” precedents like Roe.

The Mississippi case presents the greatest threat to abortion rights since 1973, largely because of the changed court.

Justices Clarence Thomas and Samuel A. Alito Jr. are determined foes of abortion rights, and they have been joined by former President Trump’s three appointees: Justices Neil M. Gorsuch, Kavanaugh and Barrett.

If the five vote as a bloc, they could decide the Constitution says nothing about abortion and hold that the decision in Roe was a mistake.

Alternatively, they could focus narrowly on Mississippi’s 15-week ban and attempt to shorten the time window set under Roe and Casey.

Scott Stewart, Mississippi’s state solicitor and a former Thomas clerk, told justices that the court’s abortion rulings “haunt our country” and have “poisoned the law.” He said abortion “is a hard issue” that should be “entrusted to the people,” not judges.

Julie Rikelman, attorney for the Center for Reproductive Rights, told justices the Constitution’s protection for liberty must include the right to choose abortion. Otherwise, a state could “take control of a woman’s body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings,” she said.

The Biden administration’s solicitor general, Elizabeth Prelogar, joined in defense of abortion rights. “The real-world effects of overruling Roe ... would be severe and swift,” she said. “Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest,” she said.

A ruling striking down Roe vs. Wade would return the issue of abortion to the states and their legislatures.

Most or all abortions would probably be outlawed in Republican-controlled states of the South and Midwest. But abortion would remain legal in Democratic strongholds, including California and New York.

On Friday morning, the justices will meet behind closed doors to cast their votes in the case of Dobbs vs. Jackson Women’s Health Organization. Six signaled they are ready to uphold Mississippi’s law.

But the real debate will be over how to explain that ruling and write the decision.

The chief justice seemed intent on setting a tighter time limit for abortions. He questioned the basis for the 24-week line and said pregnant women would have reasonable time to choose abortion if the limit were set at 15 weeks. A ruling on that issue could put off a decision on overturning the right to abortion entirely.

However, none of his conservative colleagues spent much time debating that issue. Instead, they focused on whether the principle of “stare decisis,” or standing by past decisions, required them to stand behind Roe vs. Wade.

Kavanaugh, Alito and Barrett said the principle did not require them to stand behind a decision that was a misreading of the Constitution.

Rikelman and Prelogar argued that the court in 1992 reconsidered the Roe decision and ultimately upheld the right to abortion by a 5-4 vote in Planned Parenthood vs. Casey.

Justice Anthony M. Kennedy, a Reagan appointee, cast a key vote to preserve the right to abortion. Now with Kennedy retired, two of his former clerks — Kavanaugh and Gorsuch — could cast the votes to overturn that decision.

A final decision on the Mississippi case isn’t likely to be announced until next year.

Also still pending before the court is an abortion rights challenge to a Texas law that makes it illegal for doctors or clinics to terminate a pregnancy after six weeks. The state itself does not enforce the measure, known as Senate Bill 8. Instead, it authorized private lawsuits against those who violate it. That threat has shut down most abortions in Texas.

In early September, the court by a 5-4 vote refused to block the Texas abortion ban, citing procedural complexities. The justices then heard arguments on Nov. 1 to decide whether federal judges could block Texas courts from enforcing SB 8. The delay in deciding, now extending for three months, has kept the Texas ban in place.

Just outside the courthouse steps on Wednesday, demonstrators gathered in protest. Hundreds of abortion rights activists were joined by a handful of Democratic lawmakers, including Reps. Cori Bush of Missouri, Rashida Tlaib of Michigan and Ayanna Pressley of Massachusetts and Senate Majority Leader Charles E. Schumer of New York. They were outnumbered by abortion opponents, many of whom played instruments and chanted “abortion is oppression” for much of the morning.

U.S. Capitol Police said they arrested 33 protesters for blocking traffic on Constitution Avenue.

Times staff writer Erin B. Logan in Washington contributed to this report.