We will likely get a decision in the spring.
The Supreme Court of the United States of America has six conservative justices. I hate saying that because SCOTUS’s job is to interpret the Constitution, which is not conservative or leftist.
But America has a chance to witness the elimination of Roe v. Wade or at least weaken it enough to save more human beings in the womb.
Mississippi wants to ban abortion after 15 weeks.
Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992 said states could not ban abortion before a baby’s viability. Right now, that is 22 to 24 weeks.
Lawyer Jonathan Turley found it “striking” that the “pro-choice side did not offer alternatives if the Court were to drop the emphasis on viability.”
Judicial Crisis Network President Carrie Severino praised SCOTUS for “articulating its constitutional role: not to pick winners and losers on divide issues like abortion, but to remain ‘scrupulously neutral,’ as Justice Kavanaugh said.”
I agree with Amy Howe at SCOTUSblog. Justices Kavanaugh, Clarence Thomas, and Samuel Alito appear to want to overturn Roe. Chief Justice John Roberts seemed to lean toward upholding the Mississippi law and not overturning Roe.
Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayer think overturning Roe “would overturn the court’s legitimacy by creating the sense that the ‘Constitution and its reading are just political’ acts that hinge on the court’s memberships at any particular moment in time.”
It’s hard to argue with the three justices, but their leftist friends have politicized SCOTUS so much that it’s hard to shed that problem now.
Then again, people forget that SCOTUS ruled based on privacy in Roe v. Wade, not abortion. Abortion had nothing to do with the ruling. It was all about privacy, which also does not appear in the Constitution.
The late Justice Ruth Bader Ginsburg did not like the structure of Roe v. Wade!
Let’s dive into the oral arguments. First off, there’s Kavanaugh’s critical question: Can SCOTUS prohibit abortion? From Fox News:
Supreme Court Justice Brett Kavanaugh asked the lawyer defending a Mississippi law restricting abortion Wednesday whether the Supreme Court can ban abortion — and the lawyer said it can’t.
“To be clear, you’re not arguing that the court somehow has the authority to itself prohibit abortion or that this court has the authority to order the states to prohibit abortion, as I understand it? Correct?” Kavanaugh asked Mississippi Solicitor General Scott Stewart.
Stewart said that is correct.
“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 said.
Stewart also agreed with that statement.
Chief Justice John Roberts biggest concern appeared to be precedents:
“There are a lot of cases around the time of Roe, not of that magnitude, but the same type of analysis that that went through exactly the sorts of things we today would say were erroneous,” Roberts said. “If we look at it from today’s perspective, it’s going to be a long list of cases that we’re going to say were wrongly decided.”
Mississippi Solicitor General Scott Stewart replied that “other controversial areas, or once controversial areas, are quite settled, clear rules, and don’t have those considerations against them.”
The court “won’t have to go down that road,” he added.
But that does not mean Roberts will vote against the Mississippi law because he brought up the timing of 15 weeks: “If you think that the issue is one of choice — that women should have a choice to terminate their pregnancy — that supposes that there is a point at which they’ve had the fair choice, opportunity to choice. And why would 15 weeks be an inappropriate line? Viability, it seems to me, doesn’t have anything to do with choice. But if it really is an issue about choice, why is 15 weeks not enough time?”
Roberts also reminded the country that our abortion laws align with China and North Korea, which allow late-term abortion. The majority of civil nations ban abortions after 15 weeks.
Sotomayer grossed me out when she compared babies in the womb who respond to poking or prodding to dead people:
Stewart said that advancing science since Roe v. Wade in the 1970s and Planned Parenthood v. Casey in the 1990s — including on fetal pain — bolsters his argument for overturning those cases. But Sotomayor tried to poke holes in his arguments, including on whether science about when an unborn baby can feel pain is as clear as Stewart says.
“Virtually every state defines a brain death as death. Yet the literature is filled with episodes of people who are completely and utterly plain shredded, responding to stimuli,” Sotomayor said. “So I don’t think that a response to buy a fetus necessary proves that there’s a sensation of pain or that there’s consciousness. So I go back to my question of, what has changed in science to show that the viability line is not a real line, that a fetus cannot survive?”
“What I’d say is this Justice Sotomayor, is that the fundamental problem with viability — it’s not really something that rests on science so much. It’s that viability is not tethered to anything in the Constitution. In history or tradition. It’s a quintessentially legislative line,” Stewart said.
Let’s bring Kavanaugh back in because he brought up that SCOTUS has overturned previous rulings. Justice Stephen Breyer somehow thinks those do not matter because of context, even though I’m sure Kavanaugh has read the cases:
“History tells a somewhat different story, I think, than is sometimes assumed,” Kavanaugh said about stare decisis — the principle that the court should stick to its past rulings.
“If you think about some of the most important cases in this court’s history… there’s a string of them where the cases overruled precedent,” he said.
Kavanaugh continued: “Brown v. Board outlawed separate but equal. Baker versus Carr, which set the stage for one person, one vote. West Coast Hotel, which recognized the state’s authority to regulate business. Miranda versus Arizona, which required police to give warnings… about the right to remain silent… Lawrence v. Texas said that the state may not prohibit same sex conduct. Mapp v. Ohio, which held that the exclusionary rule applies to state criminal prosecution.”
“In each of those cases… and I could go on. And those are some of the most consequential and important in the court’s history, the court overruled precedent,” Kavanaugh said.
A few minutes later Breyer slammed Kavanaugh for making allegedly false equivalencies between Roe and the other cases he cited.
“They do not include the list that Justice Kavanaugh had here… There are complex criteria that she’s talking about that link to the position in the rule of law of this court,” Breyer said. “All I would say is tou have to read them before beginning to say whether they are overruling or not overruling in the sense meant there calling for special concern.”
Breyer was referring to the opinion of former Justice Sandra Day O’Conner in Planned Parenthood v. Casey analyzing when to overturn major precedents.
We will likely get a decision in the spring. I believe SCOTUS will allow states to pass laws with the 15-week ban.DONATE
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