Justice Breyer tries to turn the focus back onto stare decisis and the danger of overturning a watershed precedent. He cites language in Casey about the Supreme Court’s institutional interest in not looking political. “That’s what kills us as an American institution.”
In 2019, the Supreme Court overruled a 40-year-old precedent that had allowed states to be sued in the courts of other states. As a practical matter, the decision itself was not particularly consequential, but its discussion of precedent was.
In a dissent, after repeatedly citing Planned Parenthood v. Casey, the 1992 decision that reaffirmed the constitutional right to abortion established in 1973 in Roe v. Wade, Justice Stephen G. Breyer said he feared for the future.
“Today’s decision can only cause one to wonder which cases the court will overrule next,” he wrote.
“The people of this nation rely upon stability in the law,” he wrote. “Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives.”
“To overrule a sound decision,” he wrote, “is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay.”
Justice Breyer did not address the fate of Roe v. Wade directly. But he sounded a general note of caution, saying it was “dangerous to overrule a decision only because five members of a later court come to agree with earlier dissenters on a difficult legal question.”
Justice Alito is asking a series of questions about why viability should be the line. He notes a woman who doesn’t want to have a baby has that same interest before and after viability. From the perspective of fetal life, he notes, viability is dependent on technology and medical practices, which changes over time.
Justice Alito seems to be exploring the idea of finding a middle ground between upholding and overturning Roe.
As a government lawyer, as an appeals court judge and on the Supreme Court, Justice Samuel A. Alito Jr. has consistently opposed legal protections for abortion.
Applying for a promotion in the Reagan administration in 1985, he wrote that he was proud to have helped advance “legal positions in which I personally believe very strongly.” One of those positions, he said, was that “the Constitution does not protect a right to an abortion.”
As an appeals court judge, he voted to uphold a Pennsylvania law that required women seeking abortions to notify their husbands. “Pennsylvania has a legitimate interest in furthering the husband’s interest in the fate of the fetus,” he wrote. The United States Supreme Court rejected his position the next year in Planned Parenthood v. Casey.
In a combative speech at Notre Dame in September, he defended the Supreme Court’s decision not to block a Texas law that barred most abortions after six weeks, saying it turned on procedural issues and had nothing to do with the fate of Roe v. Wade.
Judging by her scholarly work, Justice Amy Coney Barrett is skeptical of the power of precedent, at least in constitutional cases.
“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” she wrote in 2013 in a law review article.
She examined the role of the doctrine of stare decisis, which is Latin for “to stand by things decided” and is shorthand for respect for precedent. The doctrine is, then-Judge Barrett wrote, “not a hard-and-fast rule in the court’s constitutional cases,” and she added that its power is diminished when the case under review is unpopular.
“The public response to controversial cases like Roe,” she wrote, “reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.”
She added that there are consequences when the membership of the court changes. “The slow rate at which seats turn over itself encourages continuity in case law,” she wrote. “Justices do change their minds, but overruling is more likely when fresh eyes see a case.”
Justice Barrett is asking questions that focus on the possibility of adoption and safe haven laws, which allow a parent to safely abandon an infant with certain designated people so the child can become a ward of the state. Her point seems to be that banning abortion would not necessary doom women to also raise unwanted children, in terms of the impact on their lives.
Supporters of abortion rights demonstrating in front of the Supreme Court are staying in their designated area, but many anti-abortion demonstrators have moved past the dividing line set up by police. Some are actively confronting the abortion-rights crowd, yelling at them with loudspeakers.
Chief Justice Roberts compares America’s viability line to China and North Korea. Rikelman says his understanding of other countries’ laws is incorrect, and that similar countries like Canada and Britain essentially draw the line at viability, too.
Almost nothing in Chief Justice John G. Roberts Jr.’s background, career and early years on the Supreme Court suggested that he was anything but a skeptic of the existence of a constitutional right to abortion. But he has lately voted in surprising ways.
Last year, he voted with what was then the court’s four-member liberal wing to strike down a restrictive Louisiana abortion law, saying a recent precedent — one in which he had dissented — required the result. In a concurring opinion in the Louisiana case, he identified what he said was the central principle of Roe v. Wade: that women have the right to end their pregnancies before fetal viability.
In September, Chief Justice Roberts dissented from the Supreme Court’s refusal to block a Texas law that banned most abortions after six weeks, voting with the court’s three remaining liberals. He said he would have blocked the law while appeals moved forward, and he stressed that the majority had not determined that the law was constitutional.
“Although the court denies the applicants’ request for emergency relief today,” he wrote, “the court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”
Rikelman cites data she says shows the legalization of abortion gave women a better opportunity to participate equally in society in terms of things like career and education. Chief Justice Roberts does not seem to be interested in that, saying let’s put that data aside and think about choice and viability.
How many abortions occur after 15 weeks’ gestation? Not many, but those that do often involve women who are in more difficult circumstances with lower incomes and less access to legal abortion where they live.
The vast majority of abortions — 93 percent in 2019, according to the latest data available from the Centers for Disease Control and Prevention — occurred in the first trimester, at or before 13 weeks’ gestation. (The report represents most of the country, but does not include data from California, Maryland, and New Hampshire.)
The C.D.C. data is incomplete for abortions after 15 weeks, but in data from 33 states and New York City, the agency reported that fewer than than 5 percent of abortions occurred after that time. In Mississippi, only one-half of 1 percent of abortions occurred after 15 weeks in 2019. Since the state’s only abortion clinic does not perform the procedure after 16 weeks, however, it’s possible that some women from Mississippi went to other states for abortions after that point in their pregnancies.
One significant reason that most abortions occur earlier has been the increased availability of medication abortion, which is currently possible in the United States before 10 weeks’ gestation. In 2019, 42 percent of all abortions — and 54 percent of abortions before 10 weeks — occurred with medication, a regimen of two pills, rather than surgical methods, the C.D.C. reported.
The portion of abortions performed with medication may have increased even more during the pandemic because the Food and Drug Administration has temporarily suspended its restriction that the first of the two pills, mifepristone, be dispensed in clinics or hospitals, and, while the pandemic continues, is allowing the pills to be mailed. The agency is reviewing whether to make its pills-by-mail rule permanent.
According to the Guttmacher Institute, a research organization that favors abortion rights, and others who study abortion patterns, people who have abortions in the second trimester have often confronted obstacles in obtaining the procedure earlier.
They may have struggled to raise money for the abortion or transportation costs, to take time off from work or obtain child care. Women who lived at least 50 miles from an abortion clinic were more likely to seek second-trimester abortions, the institute reported, as were women who lived in states with more restrictions, like a requiring multiple visits or an in-person counseling session.
Justice Thomas asks whether it would be legitimate for a state to prosecute a pregnant woman for taking drugs before the fetus is viable. Rickelman emphasizes that is a different issue than what is before the court.
At his confirmation hearings in 1991, Justice Clarence Thomas said, to the astonishment of many, that he had never discussed Roe v. Wade, the 1973 decision that established a constitutional right to abortion, even though it was issued while he was a student at Yale Law School.
The next year, he dissented in Planned Parenthood v. Casey, in which the majority reaffirmed the core of the Roe decision. Justice Thomas joined opinions saying Roe was “plainly wrong” and “should be overruled.”
In his memoir, he reconciled his 1992 vote with his statements at his confirmation hearings the year before. “By then,” he wrote, “I’d had ample time to study Roe in detail, and concluded that it was wrongly decided and should now be overruled.”
Justice Thomas, the longest serving member of the current Supreme Court, has in the intervening decades frequently voiced opposition to constitutional protection for abortion.
“Nothing in our federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother,” he wrote in a 2000 dissent. “Although a state may permit abortion, nothing in the Constitution dictates that a state must do so.”
Stewart is done. Now Julie Rikelman of the Center for Reproductive Rights is arguing that the Mississippi law should be struck down, emphasizing that these issues were already dealt with in Casey, the 1992 case the reaffirmed Roe.
Julie Rikelman, the lawyer who will argue against the Mississippi abortion statute before the Supreme Court on Wednesday, won a significant victory for abortion rights supporters in 2020.
Ms. Rikelman, the litigation director at the Center for Reproductive Rights, argued successfully before the Supreme Court that a Louisiana law requiring abortion providers to have admitting privileges at a nearby hospital placed an undue burden on women in the state.
“If this law had taken effect, it would have made it virtually impossible for most people to get access to care,” Ms. Rikelman said in an interview with the Harvard Gazette last year.
The law was similar to one struck down by the Supreme Court in 2016, before the arrival of Justices Neil Gorsuch and Brett M. Kavanaugh on the court, making the Louisiana case an important window into how the court was — or was not — changing. Among the justices voting to strike down the law was Chief Justice John G. Roberts, who said respect for precedent compelled him to do so.
Years earlier, in another case focused on the rights of pregnant women, Ms. Rikelman successfully challenged a requirement at a public hospital in Charleston, S.C., to conduct urine tests and turn evidence of cocaine use over to the police. The Supreme Court ruled that such testing was an unreasonable search in violation of the Fourth Amendment if a patient did not consent to the procedure.
Ms. Rikelman, who immigrated from Ukraine at the age of 7, graduated from Harvard College and Harvard Law School. She clerked for Judge Morton I. Greenberg of the U.S. Court of Appeals, and for Justice Dana A. Fabe at the Alaska Supreme Court.
Though Justice Brett M. Kavanaugh has consistently supported abortion restrictions, he has made occasional comments staking out more moderate positions than his colleagues.
In 2019, for instance, when the court temporarily blocked a Louisiana law restricting abortions, Justice Kavanaugh issued a dissent, taking a middle position that acknowledged the key precedent and said he would have preferred more information on the precise effect of the law.
In 2017, when he was still a federal appeals court judge, he dissented from a decision allowing an undocumented teenager in federal custody to obtain an abortion, writing that the majority’s reasoning was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” He said he would have given the government more time to find a sponsor for the teenager.
But Judge Kavanaugh did not join a separate dissent from Judge Karen LeCraft Henderson, who wrote that the teenager had no right to an abortion because she was not a citizen and had entered the country unlawfully.
Justice Kavanaugh asks questions emphasizing that if Mississippi prevails, abortion would remain lawful in other states. The argument is that the Constitution is silent on abortion, leaving that issue up to state legislatures — or Congress — to set the rules through the democratic process.
Chief Justice Roberts — widely seen as one of the conservatives who is likely to be the most hesitant to overturn Roe — is probing how to think about stare decisis analysis in terms of whether the case was wrongly decided. Does that mean wrongly decided as the facts and law existed at the time, or in hindsight from contemporary perspective? He notes that the list of historical precedents that would come out the other way if presented on a blank slate today would be long.
When the Supreme Court issued its decision in the Citizens United campaign finance case, overruling a precedent, Chief Justice John G. Roberts Jr. wrote a concurring opinion that explained why the move was justified.
Fidelity to precedent, he wrote, was not an “inexorable command,” particularly in constitutional cases. “If it were,” he wrote, “segregation would be legal, minimum wage laws would be unconstitutional and the government could wiretap ordinary criminal suspects without first obtaining warrants.”
The precedent at issue in the Citizens United case, he wrote, was a “uniquely destabilizing” outlier. That warranted the extraordinary step of overruling it.
Last year, though, Chief Justice Roberts voted to strike down a restrictive Louisiana abortion law, saying an earlier decision — one from which he had dissented — was a precedent worthy of respect.
Quoting William Blackstone, whose legal commentaries influenced the founding generation, the chief justice wrote that adhering to precedent was necessary “to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.”
There is a lot of discussion of “substantive due process.” That is the doctrine that the clauses of the Constitution that say the government may not take away people’s life, liberty or property without “due process of law” mean that government actions must be fair and reasonable and further a legitimate governmental purpose. Courts have invoked that doctrine to strike down certain government laws and actions that inhibit personal liberty — like laws against contraception and abortion. Because the parameters of what crosses that line is vague, it sometimes gives rise to accusations of judicial activism — that judges are “legislating from the bench” and enforcing their policy views under the guise of law.
In 2019, after the Supreme Court’s conservative majority overruled two decisions by 5-to-4 votes in the space of a little more than a month, Justice Elena Kagan issued a caustic dissent.
“Today’s opinion smashes a hundred-plus years of legal rulings to smithereens,” she wrote of the decision, on property rights.
She quoted from Justice Stephen G. Breyer’s dissent in the earlier case.
“He wrote of the dangers of reversing legal course ‘only because five members of a later court’ decide that an earlier ruling was incorrect,” Justice Kagan wrote. “He concluded: ‘Today’s decision can only cause one to wonder which cases the court will overrule next.’”
“Well, that didn’t take long,” Justice Kagan added. “Now one may wonder yet again.”
The subtext in both cases was the coming battle over Roe v. Wade. Justice Kagan, who may have voted to uphold precedents she thought were wrongly decided more than any other current member of the court, explained her thinking: “It is hard to overstate the value, in a country like ours, of stability in the law.”
This back and forth about religion gets at the heart of a major divide in America right now: What does it mean to have life, and who gets to have it? It is one of the deepest questions humans can have.
The integrity of the court is very much on the mind of the liberal justices as they debate the case. Polls have shown a decline in public standing for the court, which has traditionally been the most highly regarded of the three branches. The confirmation fights and the view that the court is driven by politics has taken a toll.
It is impossible to overstate how important this argument about life, and its meaning, is for the anti-abortion activist community. Their push has been decades-long, to elect state lawmakers and to install conservative judges and to pass a slew of abortion restrictions. A group of nine women legislators from states like Ohio, Arizona, and Maine is gathered in front of the Supreme Court now to support the Mississippi law, wearing blue in support of Attorney General Lynn Fitch of Mississippi.
President Donald J. Trump vowed to put justices on the Supreme Court who would overturn Roe v. Wade. Opponents of abortion rights supported all three of his appointments — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — but were particularly pleased with Justice Barrett.
Justice Barrett replaced Justice Ruth Bader Ginsburg, who died last year and was a strong supporter of abortion rights. Justice Barrett, by contrast, signed a 2006 newspaper advertisement opposing “abortion on demand.”
In remarks to students at Notre Dame in 2013, as reported in a student newspaper, Judge Barrett said the core right to abortion established in Roe appeared secure.
“I think it is very unlikely at this point that the court is going to overturn Roe,” she said. “The fundamental element, that the woman has a right to choose abortion, will probably stand,” she said.
In a law review article published that same year, she wrote that Roe may be entitled to less respect than some other precedents. “The public response to controversial cases like Roe,” she wrote, “reflects public rejection of the proposition that stare decisis” — Latin for “to stand by things decided” — “can declare a permanent victor in a divisive constitutional struggle.”
Justice Barrett, who filled the seat left vacant by the death of former Justice Ruth Bader Ginsburg, gives Stewart an opening to say that other precedents identified by Justice Sotomayor as based on the structure rather than clear text of the Constitution, would not be put in jeopardy by overturning Roe.
Stewart argues that there is nothing in the text of the Constitution that says that fetal viability is a place to draw the line on abortion rights. Sotomayor argues many things are not written in the Constitution, including that the Supreme Court gets the last word on interpreting it, but that these legal principles have been discerned from the structure of the Constitution. Why are Roe/Casey so unusual in that respect that they must be overturned?
Members of Congress supportive of abortion rights are being escorted to the Supreme Court by Capitol Police, chanting “abortion is health care”
Responding to Stewart’s argument that fetuses can feel pain, Justice Sotomayor accurately states that the vast majority of scientists say that if a fetus can feel pain, it would not be possible until at least 24 weeks into the pregnancy because the brain is not sufficiently developed.
The Supreme Court’s decision in Roe v. Wade established a right to abortion up until the point in a pregnancy when a fetus could survive outside the womb. For decades, that point of viability was considered to be about 24 weeks into a pregnancy.
In recent years, advances in medicine and efforts by some medical centers have nudged that threshold slightly earlier. Now, many hospitals will attempt to provide lifesaving treatment like resuscitation and ventilation to babies delivered at 23 weeks of pregnancy.
In a smaller percentage of cases, such aggressive treatment has enabled the survival of babies delivered as early as 22 weeks. Still, some hospitals consider it more ethical to spare fragile 22-week newborns the pain of being subjected to prolonged intensive care that may not ultimately save the baby’s life. Before 22 weeks, babies are generally considered to have virtually no chance of survival or to be too underdeveloped to be treated with intensive care, although there have been rare exceptions of babies born at 21 weeks.
Many, but not all, children born extremely prematurely have lifelong health or developmental challenges such as cerebral palsy, epilepsy, visual impairment or underdeveloped lungs. Some doctors and researchers are studying these children to learn more about their lives as they grow into adulthood.
There is no possibility of fetal viability at the point at which the Mississippi law would outlaw most abortions in the state, 15 weeks, nor are Mississippi officials claiming that a baby could survive at that stage.
The politics surrounding this case are unavoidable. Justices have spent months trying to show that the members of the court are not “political hacks,” in the words of Justice Barrett, but a case like this will have many wondering just whether that is the case.
Justice Sotomayor and Stewart are arguing about whether the court in Casey, the 1992 case that reaffirmed Roe, adequately worked through the legal principles, including stare decisis. Stewart argues that the court in that case botched the job.
Following the death last year of Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor has emerged as the Supreme Court’s leading voice in support of abortion rights.
In January, when the Supreme Court reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person, Justice Sotomayor dissented, making a general point about abortion. She called on the government to “exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times.”
Four justices issued dissents in September when the Supreme Court refused to block a Texas law that barred most abortions after six weeks, and Justice Sotomayor’s dissent was by many measures the most striking.
“The court’s order is stunning,” she wrote. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”
Almost two months later, the court again refused to take immediate action against the law and instead agreed to fast-track appeals from abortion providers in the state and the Justice Department. Justice Sotomayor was the only member of the court to issue a dissent from the decision refusing to block the law in the meantime.
“For the second time, the court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas,” she wrote. “For the second time, the court declines to act immediately to protect these women from grave and irreparable harm.”
Justice Sotomayor asks Stewart whether the instutiton of the Supreme Court will “survive the stench” of overturning Roe, saying it will make the institution appear political. He says it should carefully work through the legal analysis in doing so.
Justice Breyer is grilling Scott Stewart, Mississippi’s solicitor general, on why the court should set aside the doctrine of stare decisis — the principle that the court should hesitate to overturn its precedents — and overturn Roe. Stewart argues that the standard for doing so has been met in this case.
As the Supreme Court wrestles with the Mississippi abortion law, the Latin phrase “stare decisis” is likely to keep coming up. The phrase, which roughly translates as “to stand by things already decided,” refers to a doctrine under which the court should stand by its previous decisions and hesitate to overturn precedents.
How much the current justices respect stare decisis matters because the Mississippi law represents a direct challenge to Roe v. Wade, the 1973 case in which the court recognized a constitutional right for women to choose whether to have abortions. And in a 1992 case, Planned Parenthood v. Casey, the court revisited the issue and reaffirmed its basic holding.
Under those precedents, states may not ban abortions before fetal viability — about 24 weeks.
The idea behind stare decisis is that the Supreme Court should not lightly revisit disputes it previously ruled on — even if new justices appointed in the interim would have decided those cases differently if they had been on the bench at the time — because stability serves the rule of law in and of itself.
In a 1984 case, then-Chief Justice William Rehnquist explained: “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”
But the Supreme Court has also said the doctrine is a policy consideration, not an “inexorable command.” And it is a tricky one because nearly everyone agrees that in rare cases, a past ruling can be so egregiously wrong that it is righteous to overturn it — like when the court in 1954 struck down racial segregation laws, even though it had upheld them in 1896.
Many conservatives have contended that Roe was an act of “liberal judicial activism” not properly rooted in the Constitution. There is little chance that any of the six conservative justices now on the court would have joined the 7-2 majority opinion in Roe v. Wade in 1973, had they been on the court then.
The question now is whether, after nearly 50 years in which Roe has been the law of the land, at least five of those six conservatives think the principle of stare decisis should not prevail and the court should reopen the question seemingly resolved by the 1974 and 1992 precedents.
Demonstrators are playing the live audio of the arguments from speakers at the steps of the court. The crowds have quieted somewhat to listen in.
covers the Supreme Court
Scott Stewart, Mississippi’s solicitor general, will be up first. He will be allowed to speak for two minutes without interruption. These days, Justice Clarence Thomas, who once went a decade without asking a question from the bench, tends to ask the first question.
The current Supreme Court was built by forces on the right to hear cases exactly like the review of the Mississippi abortion restrictions.
Years of effort by conservative legal groups and the guiding hand of Senator Mitch McConnell, the Kentucky Republican and Senate leader who has made populating the courts with conservative judges a top priority, cemented the court’s strong rightward tilt. Those factions now hope that their investment in a court dominated 6-3 by justices appointed by Republican presidents will finally pay off with a ruling reversing or scaling back the 1973 decision establishing a constitutional right to abortion.
Fearing that the lower federal courts and the Supreme Court itself were tilting too far to the left, conservatives in the 1980s embarked on a decades-long drive to realign the courts. They were intensely motivated by the Senate’s bipartisan 1987 rejection of President Ronald Reagan’s Supreme Court nomination of Robert Bork, a conservative hero and legal thought leader.
Members of the legal community on the right embarked on quasi-political campaigns on behalf of favored judicial nominees who had often been vetted by the conservative Federalist Society, aiming to move a select few through the judicial ranks to the Supreme Court. They also funded assaults against nominees they considered too far left.
The conservative aim was to create a court that not only leaned significantly to the right on social and cultural issues, but would also push back against government authority and lessen the power of federal regulators — to tear down the “administrative state” in the parlance of those on the right.
The clash perhaps reached its apex in 2016 when Mr. McConnell led the Senate Republican effort to block the confirmation to the high court of Judge Merrick B. Garland, President Barack Obama’s choice to fill the seat opened by the death of Justice Antonin Scalia in February 2016 with almost a year left in Mr. Obama’s second term.
Had Judge Garland been seated, it would have established a court split 5 to 4 in favor of justices appointed by Democrats. Instead, the seat was held open until Donald J. Trump took office — and Mr. McConnell’s maneuver was widely credited with helping Mr. Trump win the presidency by rallying conservatives who place high importance on the court. Mr. Trump went on to install three conservatives on the court.