In abortion case, John Roberts looks for a middle ground

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WASHINGTON — Much of the discussion about a law in Mississippi that would ban abortions after 15 weeks of pregnancy has suggested the Supreme Court faces a binary choice: It could repeal the law and completely reaffirm Roe v. Wade, as the bill’s challengers want, or it could undermine the idea that the Constitution protects abortion rights at all, as Mississippi has insisted.

But during the Supreme Court’s pleadings on Wednesday in a lawsuit challenging the law, Chief Justice John G. Roberts Jr. also proclaimed that the constitution offered no protection whatsoever for any right to abortion.

According to Roe and a 1992 case that reaffirmed it, Planned Parenthood v. Casey, it is unconstitutional to ban abortions before “viability,” the point at which a fetus can survive outside the womb, which is usually about 24 weeks into the pregnancy. . On Wednesday, Chief Justice Roberts came back repeatedly on whether the cut-off could be earlier.

“If you think it’s a matter of choice, that women should have the choice to terminate their pregnancy, suppose there’s a point where they’ve had the fair choice, the opportunity to choose, and why should 15 weeks are an inappropriate rule?” he asked, “Because I don’t think viability has anything to do with choice. But if it really is a matter of choice, why isn’t 15 weeks enough time?”

How Chief Justice Roberts handles the case could be of too much importance. Compared to some of the other five members of the court’s conservative bloc, he is widely believed to be more concerned about the institutional impact on the court if it makes a sweeping and politically contentious amendment to the law. He also has the power to instruct himself to write the opinion if he votes with the majority.

Chief Justice Roberts, known for making scary and incremental decisions, distinguished on Wednesday between an outright ban on abortion and a ban on the procedure that was stricter than the current norm. At one point, he noted that he thought moving the limit to 15 weeks — nine weeks earlier than where it is now — was “not a dramatic deviation from viability.”

He also told Solicitor General, Elizabeth Prelogar, who supported the challengers to the law, that the arguments she advanced regarding issues that would arise from ignoring Roe “sounded to me as if they were based on a total ban.” .” He said he wondered how strong those arguments “would be if there was no total ban”.

Similarly, Chief Justice Roberts asked Julie Rikelman of the Center for Reproductive Rights, a defense attorney for the challengers, whether it would make a huge difference to extend the decision deadline from 24 to 15 weeks.

“Are you suggesting that the difference between 15 weeks and viability will have the same kind of effects?” he asked.

But both Ms. Prelogar and Ms. Rikelman urged the court to preserve fetal viability, which Ms. Rikelman said was “objectively verifiable and does not require the court to resolve the philosophical issues at stake.”

Chief Justice Roberts also questioned Mississippi Solicitor General Scott Stewart whether the “viability” line was really central to Roe, as the court said in the 1992 case that reaffirmed abortion rights. The Chief Justice noted that fetal viability had not been part of Roe’s legal arguments, noting that the once confidential papers of Roe’s author, Judge Harry A. Blackmun, suggested that the setting of the viability limit was arbitrary. .

An important issue is whether it is appropriate for the Supreme Court to reopen the abortion rights issue under the legal doctrine of stare decisis — where it should hesitate to overturn precedents — even if current members would conduct those cases differently. have decided. The chief justices’ reasoning might allow him to argue that eliminating the viability line didn’t really amount to overthrowing Roe.

But Chief Justice Roberts offered no elaborate reason why allowing states to ban abortion earlier in pregnancy — but apparently still not allowing them to ban the procedure completely — would be more principled than it on the point of keeping the fetus. viability. And the idea he seemed to be toying with was met with resistance.

At one point, he made the point that most countries that allow abortion have an earlier limit, saying that the United States, like North Korea and China, used fetal viability as the standard. But Ms. Prelogar, the Solicitor General, told him that his understanding of the laws of other countries was incorrect.

In fact, she said, while it’s true that many western countries similar to the United States have nominally earlier limits, such as 12 or 18 weeks, in reality they also allow abortions until they are viable because those limits include sweeping exceptions for “broad social reasons, health reasons, socioeconomic reasons.”

The arguments also centered on whether enforcing Mississippi law without also stating that there is no constitutional right to abortion at all would be a middle ground, or rather open the door to a floodgate of stricter abortion bans and lawsuits that fight them.

Ms. Rikelman warned Chief Justice Roberts that there would be no principled stopping point if the court upheld Mississippi law so that states “would hasten to outlaw abortion at virtually any point in pregnancy.” Ms. Prelogar similarly predicted that if Mississippi law were enforced, states would immediately issue a ban after 10, eight or six weeks to move forward.

But Chief Justice Roberts brushed aside those concerns and a similar objection, saying, “I want to focus on the 15-week ban,” and that “the case before us today is 15 weeks.”

At another point, he asked Mr. Stewart to explain why Mississippi had shifted from focus on whether the viability restriction was constitutionally required — as it did in its Supreme Court petition to hear the case — to a more sweeping argument for Roe and Casey to be bluntly overruled.

Stewart told him that the state’s legal team has geared up because the more modest argument that viability was not the right standard “was lost in every appeals court”.

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