Arguing that Abortion Cases ‘Haunt Our Country,’ Mississippi Solicitor General Tells Supreme Court to Overrule Roe v. Wade

The Supreme Court of the United States on Wednesday heard oral arguments surrounding a Mississippi abortion ban that seeks to prohibit abortions after 15 weeks of pregnancy — all despite previous standards set down by the nation’s high court in Planned Parenthood v. Casey.

Casey held that states could not place an “undue burden” on a pregnant woman’s ability to choose an abortion prior to the point a fetus can live outside the womb — the point of “viability” — which occurs after 15 weeks. The Mississippi challenge to Roe and Casey is styled as Dobbs v. Jackson Women’s Health Organization. Mississippi Solicitor General Scott G. Stewart argued that the people, through their elected politicians, have the right to control pregnant bodies — not the individuals themselves. His opening monologue began as follows:

Roe v. Wade and Planned Parenthood v. Casey haunt our country. They 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 fifty years, they’ve kept this court at the center of a political battle that it can never resolve, and fifty years on, they stand alone. Nowhere else does this court recognize a right to end a human life.

Stewart continued by calling Roe and Casey “failed” decisions:

The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgement by just a few of us.  When an issue affects everyone, and when the constitution does not take sides on it, it belongs to the people. Roe and Casey have failed, but the people, if given the chance, will succeed.

Justice Clarence Thomas, the longest-serving member of the court, asked the first question by noting that Roe and Casey focus on “privacy” and “autonomy” and not on abortion. Thomas asked Stewart to discuss the difference.

Stewart responded that abortion is “not grounded in the text” of the Constitution and is based on “abstract concepts” that should be rejected.

Thomas later asked what the court should do if it refuses to overrule Casey and Roe.  Stewart asked for a “clarified version of the undue burden standard.” Stewart said the court should shift its abortion jurisprudence toward “rational basis review.”

Justice Stephen Breyer asked Stewart what was wrong with the notion that a “divided” nation asked the Supreme Court to lay down a standard that the nation would follow — then read back warnings from Casey about flip-flopping major decisions:

“[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question,” Casey observed.

Stewart said “many, many people . . . vocally wanted the matter returned to them” desired a “fighting chance to have their view prevail” — which they were “not given” under Roe and Casey.  Stewart said “factual developments” and the “workability of the undue burden standard” required Casey to be reworked because, in his view, Casey “fails.”

Justice Sonia Sotomayor sought to decisively deconstruct Stewart’s arguments. Sotomayor cut into Stewart’s core argument that abortion could be decided by the electorate, not by individual people choosing as they see fit based on their personal values and circumstances.

The right of a woman to choose, the right to control her own body, has been clearly set forth since Casey and never challenged. You want us to reject that line of viability and adopt something different. Fifteen justices over fifty years have — or, I should say, 30 since Casey — have reaffirmed that Casey viability line. Four have said no — two of them members of this Court — but 15 justices have said yes — of varying political backgrounds.

Sotomayor then immediately bemoaned that the original 15-week Mississippi ban was the result of a state House of Representatives that sought to challenge the U.S. Supreme Court’s prior precedents in Roe and Casey merely because there are “new justices” on the court. A subsequent six-week ban laid down by the state senate was also passed for the same articulated reason.

Sotomayor did not appreciate the direct challenge to the supremacy of the court as an institution by the state legislative bodies. She again launched into a speech with a strongly worded opening line:

Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?  I don’t see how it’s possible. It’s what Casey talked about when it talked about watershed decisions.  Some of them — Brown v. Board of Education, it mentioned — and this one, have such an entrenched set of expectations in our society.  This is what the court decided; this is what we will follow.  That we won’t be able to survive if people believe everything, including New York [Times] v. Sullivan — I could name any other set of rights, including the Second Amendment, by the way . . . if people believe that it’s all political, how will we survive? How will the court survive?

Stewart started to suggest that the perception that the court was political was the result of the court refusing to follow the text of the Constitution and the historical practice of the country.

Sotomayor fired back.

“How is your interest anything more than a religious view?” Sotomayor quipped after some back-and-forth later in the arguments.

Stewart said the “philosophical questions” posed by abortion were all “reasons to return this to the people, because the people should get to debate these hard issues.”

Justice Amy Coney Barrett asked Stewart if a decision in Mississippi’s favor would “call into question” any of the seminal cases Sotomayor worried about — including Obergefell v. Hodges (same-sex marraige), Griswold v. Connecticut (contraception) and Lawrence v. Texas (a case that constitutionally overturned a Texas law which criminalized sodomy). Stewart said those cases would not be jeopardized by a ruling that overturned Roe and Casey because those other cases involved “clear rules” that did not involve the “purposeful termination of a human life.”

Stewart’s argument belied very clear calls by conservatives — and perhaps even echoed by Justice Thomas himself — to overrule Griswold and to allow states to ban contraceptives.

Sotomayor, whose questions outweighed the voices of the other justices by a wide margin, returned to ask about the issues created by a patchwork of rights which affected poor people more than wealthy people — who might more easily be able to fly to other states which allowed abortions.

So, when does the life of the woman, and putting her at risk, enter the calculus?  Right now, facing women who are poor, and that’s 75% of the population . . . who elect abortions before viability, they are put at a tremendously greater risk of medical complications . . . and now the state is saying to these women, “we can choose not only to physically complicate your existence, put your at medical risk, make you poorer”… because we believe, what?

“As far as we’re concerned, it’s there the entire time,” Stewart said — tacitly arguing that the poor women referenced by Justice Sotomayor had their voices adequately heard by the legislature.

Justice Elena Kagan echoed fears that the court would be perceived as a “political institution” that would “go back and forth” depending on who “yells the loudest” in the public — and depending on the court’s makeup or “membership.” Kagan said the current precedent of Roe and Casey are “part of the fabric of women’s existence in this country” and that overturning the precedent required considerable pause.

Stewart retorted that Casey and Roe were “just as bad” 30 and 50 years ago as they are now — and that the incorrect decisions from those years past have led to “decades of damage” across the country. He continued by saying that the “undue burden” rule forced judges to “look within themselves” — a difficult standard that led to incessant appeals.

Justice Brett Kavanaugh asked Stewart to clarify that “many states” would likely continue to allow abortions even if the court allowed states to choose for themselves whether to allow or to disallow the practice. Stewart, naturally, agreed with the justice’s soft-toss prompt to argue for a patchwork of standards across the country as a good thing.

Justice Barrett returned by noting that stare decisis — leaving Roe and Casey intact out of a sense of deference to the court’s past precedent — was “obviously the core of this case.” But she noted that prior decisions have, indeed, been jettisoned by the court. Plessy v. Ferguson, the long-criticized case that held separate-but-equal segregation laws were constitutional, was an example of such an overturned case, Barrett noted.

Barrett asked whether “public reaction” should be a factor in overruling “watershed” decisions — and what other factors the court should consider.

Stewart said the court should look within the Constitution and not be “looking without” at what the public thinks of its decisions. He said the court’s legitimacy was derived from the text of the constitution; it was not based, he argued, on the court’s simple willingness to stand on the shoulders of decisions penned by the court’s previous members.

“I think the court could very, very powerfully say, look, our legitimacy really derives from our willingness to stand strong and stand firm in the face of whatever is going on and stand for constitutional principle . . . to overrule when it’s appropriate,” Stewart said.

Leading up to the arguments, the Washington Post interviewed anti-abortion activists outside the courthouse on a live YouTube stream. When asked what a decision overturning Roe would mean for them, activist Angelique Clark replied by invoking the culture wars.

“When Roe v. Wade is overturned, the culture will be overturned as well,” Clark said. “So we have a culture of life.”

Arguments then turned to the attorney for the Center for Reproductive Rights, which Law&Crime will cover separately.