Conservative SCOTUS justices lean towards upholding abortion ban while liberals slam 'religious and political' motivations to overturn Roe v. Wade: Justice Sotomayor compares unborn babies to brain-dead people
The conservative-leaning Supreme Court could be on the cusp of overhauling abortion rights nationwide after arguments in a case seeking to overturn Roe v. Wade on Tuesday.
Mississippi Solicitor General Scott Stewart opened by telling the court that the landmark 1972 case Roe v. Wade and 1992's Planned Parenthood v. Casey 'poison the law' and that Mississippi is looking to unequivocally overturn them.
The six conservative-leaning and three liberal-leaning justices will now go over the case in private and will release their final opinion in the coming weeks.
Arguments kicked off on an unusual note with Justice Clarence Thomas, traditionally quiet during this period, handed down the first question. The George H.W. Bush appointee repeatedly asked lawyers through the two-hour argument period whether they believed the case was focused on the rights of privacy, autonomy or abortion.
Chief Justice John Roberts, a conservative who has increasingly sided with liberal judges on the panel in recent years, considered whether Mississippi's ban on abortions after 15 weeks could be allowed over Roe's 'viability rule' of more than 20 weeks. But he appeared more hesitant when it came to the state's request to overturn Rue altogether.
Donald Trump-appointed Justices Brett Kavanaugh and Amy Coney Barrett also signaled they would be open to overhauling existing precedent. Kavanaugh indicated he thought the Supreme Court should return to a more 'neutral' view on abortion rights while Barrett questioned the need for abortion rights if women could give children up for adoption upon birth.
Another conservative justice, Samuel Alito, declared: 'The fetus has an interest in having a life.'
Meanwhile the liberal justices on the court attempted to claim overturning Roe would undermine public confidence in the government and the apolitical high court.
Roberts also briefly clashed with liberal Justice Sonia Sotomayor, who tore into Mississippi's opening arguments and accused the state of bringing the case forward not because of its legal basis but because of who was on the bench.
Soon after Mississippi's lawyer began opening arguments, Thomas asked 'Does it make a difference if we focus on privacy and autonomy versus if we focus on abortion?'
Justice Stephen Breyer declared the court would need an extremely compelling reason to revisit a 'watershed' case like Roe.
Justice Sonia Sotomayor accused Mississippi of bringing the case not because the state believed Roe was illegal but because of the court's conservative supermajority.
'Now, the sponsors of this bill, this house bill in Mississippi, are saying, "We’re doing this because we have new justices on the Supreme Court." Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?' Sotomayor asked.
'If people believe it’s all political, how will we survive? How will the court survive?'
Chief Justice John Roberts, who sided with liberal justices in an earlier similar ruling in Texas, jumped in during Sotomayor's questioning to say that anything written in a court opinion that goes 'beyond the facts' are merely private views and 'not binding in subsequent cases as legal precedent.'
During a tense moment Sotomayor asked him, 'Can I finish my line of inquiry?'
Sotomayor went on to compare the supposed 'pain' reactions felt by a 15-week-old fetus to how brain-dead medical patients sometimes respond to stimuli.
She accused Mississippi of forcing 'women who are poor' into a 'tremendously greater risk of medical complications and ending their life' with the abortion law for a religious view rather than a medical one.
'This is a religious view isn't it - you are assuming a fetus is life - at when? When do you suggest we begin that life?' Sotomayor asked.
Conservative Justices Brett Kavanaugh and Amy Coney Barrett appeared to suggest that if the court ruled in Mississippi's favor then it would still leave the question of abortion rights to state legislatures.
As I understand it, you're arguing that the Constitution's silent and therefore neutral on the question of abortion. In other words, that the Constitution's neither pro-life nor pro-choice?' Kavanaugh asked.
Kavanaugh wondered if the court should be neutral on abortion rights, which would require overturning Roe. If Mississippi wins the case, Kavanaugh added, such a ruling would not prohibit abortion nationwide but would let states regulate it as they see fit.
Julie Rikelman, the attorney representing Jackson Women's Health Organization - the last abortion clinic in Mississippi that's at the center of the case - said the Casey ruling rejected 'every possible reason' for overturning Roe v. Wade.
In what could be a blow to pro-choice activists, Roberts asked her if the issue at hand was one of freedom to choose or establishing a viability timeline - questioning 'If it really is an issue about choice, why is 15 weeks not enough time?'
The court's six conservative-leaning justices and three liberal-leaning justices will decide the fate of Roe v. Wade
Pro-abortion rights activists were seen outside the court taking 'abortion pills' as a show of protest
Justice Samuel Alito also pounced on the viability question, dismissing the deadline as 'arbitrary.'
'If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed. The fetus has an interest in having a life, and that doesn’t change from the point before viability and after viability,' Alito said.
Thomas chimed in again repeating his question on whether the Supreme Court is being asked to look at issues of autonomy or privacy.
Rikelman told him the issue of 'liberty' is at stake: 'It’s the textual protection in the 14th Amendment that the state can’t deny someone liberty without the due process of law.'
'So all of the above,' he replied.
Rikelman also clashed with Barrett, who repeated the line that a weeks-based viability line is arbitrary compared to other ways to measure a pregnancy such as trimesters.
The attorney countered that the viability line established by Roe is an objective line removed from religious or philosophical leanings.
Next up came top Biden administration lawyer Solicitor General Elizabeth Prelogar, who declared that ruling with Mississippi would send a message to women in America that their personal liberties were not protected.
'The Court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society. The Court should not overrule the central component of women's liberty,' she said.
Prelogar claimed that half of all the states would 'swiftly' move to limit or ban abortion.
Kavanaugh again asked about what the pitfalls would be of leaving abortion up to the states, noting that people living on the East Coast and those in the Midwest live under different circumstances.
The solicitor general argued that low-income women in states that did outlaw abortion could be forced to choose between travel they may not be able to afford or seeking an abortion under illegal means that could put her life at risk.
Barrett asked if it was a question of terminating pregnancy or giving up 'parental rights.'
She questioned why a woman would need to get an abortion if she can give up their baby when it's born
If the state is successful the ruling would overturn Roe v. Wade, a landmark 1973 case that legalized the practice nationwide.
Pro-abortion rights and pro-life activists began gathering outside the Supreme Court in the early morning hours. Some impassioned protesters brought props such as a small replica of a fetus while others brought white boxes labeled 'abortion pills' which they enthusiastically gulped down in front of cameras and fellow activists.
Police had already set up barriers as the crowds gathered, a sign of the high tensions expected over today's case.
Alveda King, niece of civil rights leader Martin Luther King Jr., was seen amid this morning's demonstrations urging the Supreme Court to 'heal our land of the epidemic of abortion.'
Senator Roger Wicker from Mississippi wrote on Twitter that his staff was handing out coffee to pro-life protesters in the chilly December weather.
Progressive lawmakers are also there to stand with pro-choice activists. Rep. Pramila Japayal of Washington, who previously revealed she had an abortion herself, addressed the crowd along with Rep. Barbara Lee of California and Rep. Diana DeGette of Colorado.
'If you are here today, you are in the struggle for justice and I want to thank every single person that has stood up, that has spoken out and organized to fight against these dangerous attacks on choice,' Japayal said to applause.
The law, Mississippi's Gestational Age Act, was passed in 2018 and only allows abortions 15 weeks after conception in 'medical emergencies' and 'severe fetal abnormality.' It makes no exceptions for rape or incest.
On the other end of the suit is Jackson Women's Health Organization, the only legal abortion clinic in the entire state.
Some protesters brought unusual props such as a small model of a fetus
The law has already been blocked by two federal courts, but pro-choice activists are watching nervously after the court gave a preview of how it could lean earlier this year in a similar case from Texas.
The pro-choice Guttmacher Institute estimated that 26 states 'are certain or likely to ban abortion' if Roe is overturned today in a recent report.
Marjorie Dannenfelser, president of anti-abortion group Susan B. Anthony List, is joining the crowds outside the Supreme Court today.
In an excerpt of her prepared remarks obtained by DailyMail.com, Dannenfelser will say: 'Friends, life is truly the most important human rights cause of our time. From abolition to suffrage to the civil rights movement, principled women and men throughout history have always stepped up to lead at pivotal moments like this.
'The pioneers of the women’s movement clearly understood the violent, oppressive nature of abortion, and they adamantly opposed it.'
Pro-abortion group NARAL Pro-Choice America called today's case a 'moment of crisis.'
'The constitutional right to abortion faces a terrifying and unprecedented threat. This moment of crisis is the culmination of the anti-choice movement’s decades-long efforts to undermine the will of the overwhelming majority of people in this country who support the legal right to abortion,' NARAL President Mini Timmaraju said in a statement.
'Make no mistake: The future of reproductive freedom is in grave danger, and the time to take bold action to protect it is now.'
Here's a breakdown of what's at stake when oral arguments begin for Dobbs v. Jackson Women's Health Organization on Thursday:
What is at stake:
The Mississippi law, passed in 2018, directly contradicts the Roe v. Wade ruling, where the court decided that abortion must be legal pre-viability, or around 24 weeks.
The question is whether or not all pre-viability bans are unconstitutional.
Mississippi has asked the court to revisit Roe directly, as well as another landmark 1992 case that upheld abortion rights but allowed some restrictions, Planned Parenthood v. Casey.
A pro-abortion rights activist protests outside the Supreme Court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women's Health, in Washington, U.S., December 1
Pro-choice and pro-abortion rights activists mix outside the Supreme Court building today
Who is bringing forth the case:
The Jackson Women's Health Organization. The JWHO, as the state's only abortion clinic, is suing because it is directly affected by the law.
In Planned Parenthood v. Casey, the Supreme Court ruled that states could place restrictions on abortions so long as they did not place an 'undue burden' on the patient. That year, the state had eight abortion clinics, seven of which have closed since the ruling.
After the ruling, state lawmakers enacted regulations for abortion providers, including a requirement to pass out pamphlets warning of the potential side effects of abortion and a ban on public funding going toward abortions.
Rep. Pramila Jayapal (D-WA), chair of the Progressive Cacucus, speaks during a demonstration in front of the U.S. Supreme Court
A man takes a selfie with a somewhat worn crucifix outside the court amid the crowd
The case is the culmination of a decades-long battle between pro-life and pro-abortion groups
Pro-life protesters wearing doctor uniforms pray outside of the Supreme Court
What could come if the Mississippi law is upheld:
Adding Justice Amy Coney Barrett to the bench has strengthened the court's 6-3 conservative majority and given hope to pro-life lawmakers and activists that the nation could again see a day where states are able to fully outlaw abortion.
Twelve states have already enacted 'trigger laws,' where if Roe is overturned, abortion in the state would be made illegal immediately without action from the legislature. Twenty-six states are likely to ban abortion quickly if such power is returned to the states.
Ohio, Georgia, Louisiana, Missouri, Alabama, Kentucky, South Carolina, and Texas have all passed heartbeat bills, but none except Texas' have gone into effect due to court intervention.
The JWHO has said that since the Texas law took effect Sept. 1, one-fourth of its patients come from the Lonestar State.
Meanwhile, New Hampshire Democrat Jeanne Shaheen has warned of a 'revolution if the court overturns Roe.
'I hope the Supreme Court is listening to the people of the United States because – to go back to Adam Sexton's question – I think if you want to see a revolution go ahead, outlaw Roe v. Wade and see what the response is of the public, particularly young people,' Shaheen said during a virtual event Monday featuring New Hampshire's entire House and Senate delegation. 'Because I think that will not be acceptable to young women or young men.'
Police officers erected barriers in anticipation of inflamed tensions during the case
Mississippi Governor Tate Reeves, a Republican, said late Tuesday that he was confident his state's effort to squash Roe will prevail
Pro-abortion group NARAL Pro-Choice America called today's case a 'moment of crisis'
Pro-life activists are also calling on Congress to pass the Women's Health Protection Act to enshrine abortion rights as law
The Jackson Women's Health Organization. The JWHO, as the state's only abortion clinic, is suing because it is directly affected by the law
The Supreme Court is set to take up its biggest abortion case in 30 years as it decides the fate of a Mississippi abortion law
The other abortion debate at the court:
The hearing comes after the high court earlier heard arguments on Texas' new abortion law, which bans the procedure after a fetal heartbeat is detected, around 6 weeks, but attempts to bypass judicial restraints by making private citizens the enforcers. Any private citizen can sue anyone who aided an abortion and is subject to compensation.
Legal experts had thought the court might weigh in on the case before hearing the Mississippi arguments, but no decision has been made.
During arguments, the court appeared to be in favor of blocking the law due to its enforcement measures.
Four of the nine members on the highest court -- Chief Justice John Roberts and the three liberal justices -- had voted previously to halt enforcement of the Texas Heartbeat Act, which makes no exception for rape or incest.
Two conservative justices appointed by former president Donald Trump -- Brett Kavanaugh and Amy Coney Barrett -- appeared inclined after two hours of oral arguments to also vote to block the novel Texas law.
One of Mississippi's two senators, Republican Roger Wicker, tweeted this morning that his team was outside the court supporting pro-life protesters with hot coffee
Roe v. Wade faces high-profile conservative opposition:
Republican Senator Roger Wicker of Mississippi is supporting pro-life activists outside the Supreme Court with free coffee in the cold December weather.
'Beautiful morning here at the Supreme Court. There are hundreds of people gathered to fight for life. If you’re in Washington, my staff are stationed out front with coffee. Come find us!' Wicker wrote on Twitter.
Vice President Mike Pence said Tuesday he believes Roe v. Wade will soon be overturned.
'Today as the Supreme Court prepares to hear oral arguments in those hallowed halls, we are here to declare with one voice 'no more,' he said at the National Press Club in Washington, D.C. at an event put on by the Susan B. Anthony list.
'I'm very hopeful and I do believe that Roe v. Wade will be overturned whether it's now or in the future,' he said.
He urged the high court to throw the Roe v. Wade decision to the 'ash heap of history.'
Mississippi Governor Tate Reeves, a Republican, said late Tuesday that he was confident his state's effort to squash Roe will prevail. He told Fox News that 'the science has changed' in the decades since the case was first decided.
'Here's what we know about a child at 15 weeks. We know that that child has a heartbeat. We know that that child pumps multiple quarts of blood every single day. We know that that baby is developing its lungs. We know that that baby can squeeze its hands, its fingers. And we know that that baby can feel pain,' Reeves said.
Reeves' fellow Republican governor, Georgia's Brian Kemp, spoke out on Wednesday shortly before arguments are set to begin.
'Georgia is a state that values the lives of the unborn. Our family joins thousands of pro-life conservatives across the country today in prayer as the U.S Supreme Court takes up the Dobbs case,' Kemp wrote on Twitter.
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