Laurel Duggan, DCNF
The Supreme Court heard oral arguments Wednesday morning in Dobbs v. Jackson Women’s Health, a case that directly challenges the Roe v. Wade precedent that blocks states from banning abortions in the first six months of pregnancy.
The Court’s conservative majority “signaled it would uphold Mississippi’s 15-week ban on abortion and may go much further to overturn the nationwide right to abortion that has existed for nearly 50 years,” according to Associated Press. Roe blocked states from banning abortions in the first six months of pregnancy.
Justice Brett Kavanaugh, seen by many as a swing vote, was critical of the stare decisis argument that court precedents should not be overturned. In some of the Court’s most important and consequential cases, according to Kavanaugh, the justices overturned existing precedents. He cited Brown v. Board of Education, which outlawed “separate but equal” education, and Obergefell v. Hodges, which recognized the constitutionality of same-sex marriage.
Kavanaugh also appeared skeptical of the Roe precedent itself. He described in detail Mississippi’s argument that the Court has been forced to take a position on “the most contentious social debate in American life,” when the Constitution is neutral on the issue of abortion, and that the issue should be left to the people, the states, or to Congress.
The New York Times said the Court “seemed poised on Wednesday to uphold a Mississippi law that bans abortions after 15 weeks of pregnancy,” though “the court’s six-member conservative majority seemed divided about whether to stop at 15 weeks, for now at least, or whether to overrule Roe entirely, allowing states to ban abortions at any time or entirely.”
Mississippi’s 15-week abortion ban challenges the central component of Roe: the viability line, which the Roe precedent argued falls at around 24 weeks. Justice Sonia Sotomayor repeatedly interrupted Scott Stewart, the Mississippi attorney general, as he explained scientific developments that challenge the 24-week viability line, particularly our evolving understanding of early fetal pain.
When Stewart noted that fetuses as young as 15-weeks recoil when poked, Sotomayor responded that some braindead people can move involuntarily when poked. “I don’t think that a response by a fetus necessarily proves that there’s a sensation of pain or that there’s consciousness,” she argued.
Justice Clarence Thomas challenged arguments that there is a constitutional right to abortion, noting several times that abortion is not mentioned in the Constitution.
Attorneys challenging the Mississippi law referred to pregnancy, childbirth and motherhood as things women are “forced to endure” when abortion is restricted. Their arguments emphasized pre-viability abortions as a constitutional right and conceded that the government has an interest in protecting babies that could survive outside the womb.
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