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Supreme Court hears case to repeal abortion rights

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Photo by Andrew Harnik / AP
Photo by Andrew Harnik / AP

On Wednesday, December 1, the United States Supreme Court heard oral arguments in Dobbs v. Jackson, the newest case challenging the fifty-year precedent set by Roe v. Wade in 1973 and reaffirmed in Planned Parenthood v. Casey in 1993.

The case regards the "Gestational Age Act." Enacted in 2018, this Mississippi law would ban all abortions after fifteen weeks, including those caused by rape or incest. However, the law has never gone into effect. It was first blocked by the Federal District Court for contravening a key component of both Roe and Casey, namely, that states are not allowed to ban abortions before the age of fetal viability. It was then taken to the court of appeals, which upheld the previous ruling.

After the death of Justice Ruth Bader Ginsburg and the hasty confirmation of Trump appointee Amy Coney Barrett, Mississippi pushed to have the case heard once again in front of the Supreme Court. The state is now urging the court to use this case as precedent to overturn Roe and Casey.

While it has been thirty years since an attempt to overturn Roe has gone in front of the Supreme Court, one justice can still remember that case. Justice Clarence Thomas sat on the court in 1992 and wrote in the dissent of Casey, "Roe was wrongly decided, and it can and should be overruled." Thomas, it seems, may now have the chance he has been waiting for.

This artist sketch depicts Mississippi Solicitor General Scott Stewart speaking to the US Supreme Court on December 1. Justices seated from left are Brett Kavanaugh, Elena Kagan, Samuel Alito, Clarence Thomas, John Roberts, Stephen Breyer, Sonia Sotomayor  

Arguing on behalf of the state of Mississippi, State Solicitor General Scott Stewart started his arguments by saying, "Roe v. Wade and Planned Parenthood v. Casey haunt our country." He went on to claim that these decisions "have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise. For 50 years, they've kept this court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this court recognize a right to end a human life."

The fact-checking site The Cut flagged Stewart's statements as fallacy-ridden. While Roe and Casey protect the right to receive legal and medically professional abortions before fetal viability, they did not introduce the practice to the United States.

Before Roe v. Wade the ruling, people were still receiving abortions, but they were doing so in secret, in "back-alley" facilities or on their own. The result was a much higher maternal death rate. In pockets of the country where laws have made it harder for people to receive abortions and clinics have had to close, people without access to transportation are unable to find affordable reproductive healthcare. Around the world, maternal mortality rates have been falling for the past 30 years, but in the United States, the number of birth-related deaths has begun to skyrocket, doubling between 1992 and 2014. Outlawing abortions stands to make those numbers worse. According to the World Health Organization, 13.2% of the world's annual maternal deaths are attributed to unsafe and unregulated abortions. In a study done at Tulane University, it was found that there are higher maternal mortality rates in states with more abortion restrictions.

The victims of these statistics are most often people of color or people living in poverty. For many, abortion is a financial decision. While the court did examine the costs associated with "forced motherhood," they did not discuss the out-of-pocket costs that a pregnancy and childbirth entail.

Justice Stephen Bryer noted the strong accusations put forward by Stewart but reminded him that repealing a case with 50 years of precedent is not done easily. "Feelings run high. And it is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure," he said. Breyer's statement evoked sentiments of former President Trump, who promised during his presidential campaign that he would appoint justices who would repeal Roe v. Wade.

Breyer reminded Stewart why the justices agreed to the stare decisis decision in the ruling of Casey; he pointed to sentences in Casey that "say overruling unnecessarily and under pressure would lead to condemnation, the court's loss of confidence in the judiciary, the ability of the court to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law."

Justice Sonia Sotomayor echoed Breyer's concerns and brought up her own: that the argument was only in front of the court now because of its new, more conservative majority.

"Now the sponsors of this bill, the House bill, in Mississippi, said we're doing it because we have new justices," she said, adding that the same was true about the Mississippi "Heartbeat Bill" that was passed earlier this year. "Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?" Sotomayor said.

Arguing in favor of Jackson Women's Health, Julie Rikelman of the Center for Reproductive Rights stated, "Mississippi's ban on abortion two months before viability is flatly unconstitutional under decades of precedent."

US Solicitor General Elizabeth Prelogar, speaking for the United States in favor of Jackson Women's Health, added, "The real-world effects of overruling Roe and Casey would be severe and swift. 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. ... If this court renounces the liberty interests 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."

Photo by Andrew Harnik / AP  

Despite these arguments, conservative justices such as Barrett tried to justify the repeal of abortion protection laws by bringing up adoption. "Why don't the safe haven laws take care of that problem?" Barrett asked, bringing up laws that make it legal for birth parents to abandon infants they cannot care for at federally designated locations.

"And insofar as you and many of your amici focus on how forced parenting, forced motherhood would hinder women's access to the workplace, and to equal opportunities, it's also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy—why don't the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn't seem to me to follow that pregnancy and then parenthood are all part of the same burden," she finished.

While Barrett did bring up the argument that forced parenthood puts an extreme financial burden on an individual, her solution was to remind Americans that this burden can be avoided if they choose to put the child up for adoption instead of receiving an abortion.

This argument only works if people are willing to overlook the cost of pregnancy itself. In Seattle, the cost of giving birth will range from $14,000 to $18,000, depending on whether complications arise. The mental and physical toll of nine months of unwanted pregnancy constitute an additional burden Barrett could not account for in justifying adoption.

The cost of adoption also weighs heavily on the child, as Christina Dornan, founder of Finally Family Homes, says. As the Finally Family website states, 20% of all children who age out of the foster care system become homeless, which means that, annually, 4,000 teens become homeless on their eighteenth birthday. In an investigative piece in Newsweek, reporter Michael Dose also confirms that most Americans who are victims of sex trafficking come from foster care systems. With greater access to abortion, statistics like these have gone down. However, Barrett was content to ignore the sobering facts behind adoption, claiming that "safe haven laws" justify repealing Roe.

After two hours of arguments, Thomas, Alito, and Kavanaugh looked willing to overturn the laws outright. Other conservative justices, such as Barrett, seemed at least willing to scrap the "fetal viability" portion of the law, amending it so that states cannot outlaw abortion but can continue to restrict the procedure to the point where access will be nearly impossible.

A ruling for the case is expected to be announced sometime in the summer session of 2022.