As SCOTUS considers ‘extinguishing’ right to abortion, calls mount for Congress to ‘step up’

Protesters attend a “Hold the Line for Abortion Justice” event at the U.S. Supreme Court on December 1, 2021 in Washington, D.C. (Photo: Leigh Vogel/Getty Images for Women’s March Inc)

As journalists and other observers of the U.S. Supreme Court noted Wednesday that its right-wing majority appeared inclined to uphold Mississippi’s 15-week abortion ban—and potentially overturn Roe v. Wade—while hearing oral arguments in a case challenging the state law, reproductive rights advocates rallied outside and demanded congressional action.

Pro-choice activists are calling on the Democrat-controlled Congress to affirm the right to abortion nationwide by codifying Roe with the House-approved Women’s Health Protection Act (WHPA) and to expand the nine-member court, to which former President Donald Trump appointed three people, creating a conservative supermajority of six justices.

The Unrig the Courts coalition—made up of progressive groups that support expanding the high court—said in a statement that the arguments in Dobbs v. Jackson Women’s Health Organization were “further proof that the conservative justices at the Supreme Court are more interested in promoting a far-right extremist ideology than defending the Constitution.”

“Mississippi’s draconian abortion ban is clearly unconstitutional under the court’s own precedent, and the fact that this case is being heard at all shows just how far off the rails the conservative justices have gone,” the coalition continued, warning that the “radical conservative supermajority” installed by Trump and Senate Minority Leader Mitch McConnell (R-Ky.) “is set on gutting Roe v. Wade and extinguishing the constitutional right to abortion.”

“Today during arguments, Justice Sonia Sotomayor asked if the court would ‘survive the stench’ if it overturned Roe for purely political reasons. It will not,” the coalition added. “The conservative justices cannot be rehabilitated, and these attacks on our constitutional rights will not stop until we fix the court. Congress must act, and pass the Judiciary Act to expand the Supreme Court.”

Introduced in April by a trio of congressmen and Sen. Ed Markey (D-Mass.), the Judiciary Act would add four seats to the Supreme Court, creating a chance for a return to a liberal majority.

However—while urging the justice to uphold Roe and the related 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey—reproductive freedom advocates don’t want to just keep relying on the court to ensure the right to abortion, so they are also calling on the Senate to send WHPA to President Joe Biden’s desk, which likely requires ending the filibuster.

Rep. Pramila Jayapal (D-Wash.)—who chairs the nearly-100 member Congressional Progresstive Caucus and has publicly shared her own experience receiving abortion care—was among the many pro-choice lawmakers on Wednesday demanding that Senate Democrats abolish the antiquated rule and pass WHPA.

Like Jayapal, Nancy Northup, president and CEO of the Center for Reproductive Rights (CRR), pointed out on Wednesday that “one in four women in the United States has an abortion during her lifetime.”

“Today, both inside and outside the Supreme Court, it was abundantly clear that taking away the constitutional right to abortion would be a travesty of justice,” Northup also said.

CRR is representing Mississippi’s sole remaining abortion clinic, which is challenging the state law. The group’s senior litigation director, Julie Rikelman, argued to the high court that there is no way the justices can uphold the 15-week ban without overturning Roe.

“For nearly 50 years, the Supreme Court has recognized and protected the right to abortion,” she said. “Today, we urged the justices to stand by that precedent. Two generations since Roe have come to rely on the availability of legal abortion to shape their lives and futures. The advancements women have made towards gender equality will be sent hurtling backwards if they are unable to control their own bodies, lives, and futures.”

During arguments, Chief Justice John Roberts signaled support for a narrow decision, saying that “the thing that is at issue before us today is 15 weeks,” according to The New York Times.

The chief justice “repeatedly questioned whether the viability line was crucial, saying that Justice Harry A. Blackmun, the author of the majority opinion in Roe, had called the line arbitrary in his private papers,” the Times reported. “Roberts added that much of the rest of the world has similar limits.”

Noting that a decision isn’t expected until late June or early July, the newspaper continued:

Other conservative justices indicated that they were not interested in the chief justice’s intermediate approach. Justice Samuel A. Alito Jr. said “the only real options we have” are to reaffirm Roe or to overrule it.

Assuming the three most conservative members of the court—Justices Alito, Clarence Thomas and Neil M. Gorsuch—are prepared to overrule Roe entirely, Chief Justice Roberts would need to attract at least two votes for a narrower opinion, one upholding the Mississippi law but not overruling Roe in so many words, to be controlling. But the most likely candidates, Justices Brett M. Kavanaugh and Amy Coney Barrett, said little to suggest that they were inclined toward that narrower approach.

Slate‘s Susan Matthews noted that “one of the main arguments the state of Mississippi is making, in this case, is that pregnancy, and parenthood by extension, is no longer burdensome because of many economic and social developments that make pregnancy safer and parenting easier. (They’re wrong, as Mark Stern points out here.)”

“During arguments today, it appears Barrett is adding adoption to that list, suggesting it’s easy to carry a child to term and easy to give that child up. Perhaps it’s relevant to point out that Barrett is a mother of seven, including two children who are adopted,” Matthews reported, adding that Roberts has two adopted children and Thomas has one.

Meanwhile, the court’s three liberal justices—Sotomayor as well as Stephen Breyer and Elena Kagan—made clear that they believe that Roe and Casey should stand, with Kagan declaring that abortion decisions are “part of the fabric of women’s place in this country.”

The abortion providers, rights campaigners, faith leaders, lawmakers, and others who gathered outside agreed, with Dr. Jamila Perritt—president and CEO of Physicians for Reproductive Health and an OB-GYN in Washington, D.C.—warning that “our long-held fears that a day without the legal protection of Roe v. Wade, which has served as floor for abortion access, is upon us.”

As anti-choice Republican state lawmakers have ramped up attacks on reproductive freedom with increasingly restrictive laws specifically designed to enable a right-wing Supreme Court to overturn the landmark 1973 ruling, pro-choice campaigners and providers have argued for treating Roe as the floor rather than the ceiling for healthcare and rights.

“The unfortunate reality is that, despite the protections that the legal framework like Roe provides, it has never been enough to ensure true access to abortion care for everyone who wants or needs it,” Perritt said. “The need to access abortion does not occur in a vacuum. Even as we watch access to abortion hang by a thread, we continue to work toward a future where our families do more than survive—they thrive. We continue to work toward reproductive justice.”


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