Supreme Court weighs fetal viability in landmark Mississippi abortion case

By Clyde Hughes & Christina van Waasbergen, Medill News Service
Protesters gather Wednesday at the Supreme Court in Washington, D.C. on Wednesday. Photo by Tasos Katopodis/UPI .
1 of 9 | Protesters gather Wednesday at the Supreme Court in Washington, D.C. on Wednesday. Photo by Tasos Katopodis/UPI . | License Photo

Dec. 1 (UPI) -- The Supreme Court on Wednesday struggled with questions about fetal viability as it tackled a Mississippi abortion law that challenges the landmark 1973 Roe vs. Wade decision.

Conservative justices, particularly Clarence Thomas, Samuel Alito and the newest member of the court, Amy Coney Barrett, pushed Julie Rikelman, a lawyer representing Jackson Women's Health Organization, on the issue during a hearing on the case.


The Mississippi abortion law, one of the toughest in the country, bans abortions after 15 weeks. Roe vs. Wade established a right to abortion before fetal viability around 23 or 24 weeks. Alito questioned having a line at all.

"The fetus has an interest in having a life," Alito said, suggesting that right doesn't change before or after viability. "What is the secular philosophical argument for saying this is the appropriate line?"


Rikelman argued the line was "objectively verifiable" where the court does not have to wade into philosophical questions. Rikelman was constantly put on the spot during the back-and-forth with justices as she argued against the limitations of the Mississippi law.

"For a state to take control of a woman's body and demand she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty," she said.

Chief Justice John Roberts suggested that the 15-week line for abortions could be the new standard.

Toward the end of arguments Wednesday, Justice Brett Kavanaugh admitted the question about the rights of women and unborn children is "hard" because essentially someone has to pick a side and it was impossible to serve the interest of both.

In asking why the court should make the decision on picking sides and allowing Congress or state legislatures, Rikelman said allowing women to end a pregnancy is a fundamental right and should not be left to individual politicians.

Justice Sonia Sotomayor questioned Mississippi Solicitor General Scott Stewart about religious overtones.

"The issue of when life begins has been hotly debated by philosophers since the beginning of time," Sotomayor said. "It's still debated in religions. So when you say this is the only right that takes away from the state the ability to protect life, that's a religious view, isn't it?"


Stewart repeatedly suggested that "the people" should decide such issues and not the court, saying the Constitution is actually neutral on the issue of abortion. He said the court should overturn Roe vs. Wade and the subsequent Planned Parenthood vs. Casey decision, which held that pre-viability abortion restrictions must not place an "undue burden" on those seeking abortions. He said that the court should give the issue back to the people to decide.

"Roe v. Wade and Planned Parenthood v. Casey harmed our country," Stewart said. "They have no basis in the Constitution."

Sotomayor suggested reversing Roe and Casey would destroy the public's faith in the Supreme Court.

"Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" she asked. "I don't see how it is possible."

Kristen Waggoner, the general counsel of the Alliance Defending Freedom, a non-profit that supports religious rights, said she was hopeful after the hearing.

"It was clear today that the justices were carefully considering the arguments made, and we sincerely hope that the court reaches a result that protects life," she said in a statement. "Mississippi's common sense law upholds America's foundational respect for life, which is at odds with Roe."


Some of the justices inquired about the possibility of a compromise. Justice Thomas asked Stewart if there is a standard the court could impose other than the viability standard if the justices don't fully overturn Casey and Roe. Stewart said the court could keep the undue burden standard but get rid of the viability line.

Justice Neil Gorsuch similarly asked U.S. Solicitor General Elizabeth Prelogar, who also argued in support of the clinic, if the court were to throw out the viability standard whether there was another standard that could be appropriate.

"I don't think there's any line that could be more principled than viability," Prelogar said. "I think the factors the court would have to think about are what is most consistent with precedent, what would be clear and workable and what would preserve the essential components of the liberty interest, and viability checks all of those boxes and has the advantage as well of being a rule of law for 50 years."

A decision by the Supreme Court in 1992 began to erode Roe vs. Wade by allowing states to regulate abortion rights as long as they didn't impose an undue burden on women before fetal viability at 23 to 24 weeks. Since then, states have pushed the "undue burden" line.


"The very essence of a constitutional right is that it is not up to the legislatures," Rikelman, senior director of litigation at the Center for Reproductive Rights, told NPR. "It's a right that we all have [that] the legislators cannot take away from us."

In a speech on Tuesday to advocacy groups Advancing American Freedom and the anti-abortion group Susan B. Anthony List, former Vice President Mike Pence said he believes the arguments should send Roe vs. Wade to "the ash heap of history."

"Now more than ever, we need our conservative majority on the Supreme Court of the United States to return the question of life to the states and the people," Pence said, according to CNN. "While I cannot say how the Supreme Court will rule, today I can say with confidence the tide has turned for the pro-life movement."

While the high court has taken on the Mississippi case, it has not yet ruled on the more stringent abortion law in Texas, which bars the practice as soon as a fetal heartbeat is detected, which can be as soon as six weeks, sometimes before a woman even knows she is pregnant. The law allows private citizens to file lawsuits in an effort to get around legal challenges.


Before the oral arguments, protesters on both sides of the issue gathered in front of the Supreme Court. Ava Frank, a media assistant for the anti-abortion group Created Equal, said she hopes the Supreme Court overturns Roe or at least allows for more restrictions on abortion.

"The reason our organization is against abortion is because it is always wrong to intentionally kill an innocent human being," Frank said.

Speaking at an abortion rights rally outside the Supreme Court, former abortion clinic counselor Kenya Martin said she is "someone who has had abortions and is free of any shame or guilt and empowers others who had abortions."

"There is nothing Christian about these abortion bans," Martin said. "God gives us free will."

The high court's decision in the Mississippi case will come sometime between now and the end of the court's current term in June.

The justices of the U.S. Supreme Court

Members of the U.S. Supreme Court pose for a group photo at the court in Washington, D.C., on Friday. Seated, from left to right, are Associate Justices Samuel Alito and Clarence Thomas, Chief Justice John Roberts and Associate Justices Stephen Breyer and Sonia Sotomayor. Standing, from left to right, are Associate Justices Brett Kavanaugh, Elena Kagan, Neil Gorsuch and Amy Coney Barrett. Pool Photo by Erin Schaff/UPI | License Photo

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