Supreme Court justices sound ready to restrict the right to abortion

David G. Savage, Los Angeles Times on

Published in Political News

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.

An attorney for Mississippi began by arguing the court’s abortion rulings “haunt our country” and have “poisoned the law,” and most of the six conservative justices appeared to agree during nearly two hours of argument.

“The Constitution is neither pro-life nor pro-choice on abortion,” Justice Brett M. Kavanaugh said, summarizing the argument for overturning Roe vs. Wade. He said, the court should not “pick sides on the most contentious social debate in American life.”

Justice Amy Coney 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 impact on their lives and careers.

The court has six conservative justices who are skeptical of abortion rights, but only Chief Justice John G. Roberts Jr. focused on the narrow issue of upholding Mississippi’s 15-week ban on abortions.

It is possible that Kavanaugh and Barrett could join him to rule narrowly for Mississippi, but they sounded as though they were prepared to go further and overrule the right to abortion entirely.

The three liberal justices said the court would be making a great mistake to overturn its past rulings.

Kavanaugh said 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.


The Mississippi case presents the greatest threat to abortion rights since 1973 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 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.

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.

On Wednesday, the Biden administration’s Solicitor General Elizabeth Prelogar joined Julie Rikelman, an attorney for the Center for Reproductive Rights, in urging the court to stand by its precedents and leave the abortion decision in the hands of pregnant women, not the government.

They said that in Roe vs. Wade the court promised that women may choose abortion until about the 24th week of a pregnancy, the time when the fetus may be capable of surviving outside the womb on its own.

They pointed out that the court in 1992 reconsidered the Roe decision but 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.

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