How the Court Has Already Redefined the Right
Ruth Bader Ginsburg had ideological problems with the abortion argument presented in Roe v. Wade. The case in Roe was made on privacy grounds, and former Justice Ginsburg believed that the best argument would be one made on equal protection grounds. An ideal test case in the Justice’s mind would present the opportunity for the court to say that the law treats everyone equally, regardless of their ability to get pregnant. Five decades after Roe, most Americans understand abortion as a right necessary for the full participation of those who may become pregnant in society.
In the oral argument before the Supreme Court last Wednesday, Dec. 1, counsel for the respondent, Center for Reproductive Rights Julie Rikelman, made the case that Roe should be upheld on the grounds of liberty. The Solicitor General of Mississippi, Scott Stewart, was arguing for the petitioners on the consitutionality of Mississippi’s 15 week abortion ban. Mississippi has made a series of arguments against Roe that have changed with the composition of the court, which was only indirectly referred to at oral argument. The featured argument in the petition of certiorari to the court — Mississippi’s request of the Supreme Court to hear the case in the first place—was focused more directly on questioning pre-viability. The response brief — submitted in July after Ruth Bader Ginsburg had died and before Justice Amy C. Barrett was confirmed — first focuses on overruling Roe’s viability line, and then goes on to ask the court to change the level of scrutiny which courts consider laws designed to curtail abortion as a right. The latter type of ruling would dramatically change how abortion is considered by the courts in the future.
At oral argument a lot of time was given to the discussion of Plessy v. Ferguson — which established the doctrine of separate but equal — and how it was later overruled in Brown v. Board of Education; the ineffective administration of which by the very petitioner in this case was noticeably absent from throughout this argument, or how Plessy came to be decided in the first place. The overruling of Plessy by Brown was relevant because it means that the interests in Brown were sufficient to overcome Plessy and overrule precedent. The presence of Plessy throughout the argument signaled an interest in when overruling precedent was warranted.
The justices’ questions are generally used as a metric for how they may vote. Given the nature of the abortion right and the ideological leaning of the court, many court observers were listening for surprises. Chief Justice Roberts is generally considered the swing moderate conservative on the court, and his questions focused on why cutting the window to actualize an abortion right almost in half could pose a problem for the standing precedent. Justice Sotomayor’s almost one woman defense of abortion as a right central to American equality of the sexes while questioning Mississippi’s Solicitor General, and fending off the Chief Justice’s interruption were notable. Justice Sotomayor’s speech throughout the argument displayed her characteristic attention to the general public; her remarks were clear and an average listener was considered. The advocacy by both Rinkelmen and Solicitor General Prelogar were focused and clear. They more than answered the questioning from the more conservative justices. Justice Barrett’s attention to “Safe Haven Laws” — which allow parents to leave their children at safe haven sites like fire houses — denotes her attention to Roe and Casey’s consideration of parenthood as a post-pregnancy burden. Justice Kavanaugh offered a list of precedent that the court had overturned to uphold the rights of various groups of Americans, from voters to gay folks.
The national news media will soon have to reconcile with what counts as “overruling” Roe. Much of the discussion has referred to an overruling of Roe as though it will occur in a single moment, and not as if Roe is effectively null throughout Texas. The conversation around overruling Roe treats the court as though they are actively maintaining abortion rights as usual. They have neglected to do so with an injunction in the Texas SB 8 case Jackson.