The showdown, which centers on whether the Constitution provides a right to seek an abortion, focuses on a 2018 Mississippi law, blocked by lower federal courts, that would ban most abortions after 15 weeks of pregnancy, allowing them only in medical emergencies or cases of severe fetal abnormality.
Supporters argue that the law is intended to regulate “inhumane procedures” and that a fetus is capable of detecting and responding to pain by that point in a pregnancy. Opponents contend that the Supreme Court has repeatedly ruled that the Constitution protects abortion.
“The Constitution places trust in the people, on hard issue after hard issue, the people make this country where abortion is a hard issue,” said Mississippi Solicitor General Scott Stewart during oral arguments. “It demands the best from all of us, not a judgment by just a few of us.”
Associate Justice Sonia Sotomayor pressed Stewart on the broad implications of the case.
“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” Sotomayor asked. “I don’t see how its possible. It’s what Casey talked about when it talked about watershed decisions.”
Sotomayor further questioned Stewart on the science behind the viability of a fetus before 23 to 24 weeks, in which, Stewart replied, “The fundamental problem with viability it’s not really something that rests with science so much, it’s viability not tethered to anything in the Constitution in history or tradition it’s a quintessentially legislative line.”
Sotomayor came back to say, “there is not anything in the Constitution the Supreme Court is the last word on what the Constitution means.”
The Mississippi law takes aim at the court’s landmark Roe v. Wade ruling in 1973, as well as the 1992 decision in Planned Parenthood v. Casey. The court has held that states can impose some restrictions on abortion as long as they do not present an “undue burden” and that the procedure cannot be prohibited before fetal viability, generally considered to be 23 to 24 weeks into pregnancy.
The Centers for Disease Control and Prevention estimated last month that among the 47 states that reported abortion data for 2018 and 2019, the number of procedures increased by 1.7 percent. The CDC report estimated that 95 percent of abortions take place by the 15-week mark.
The most recent NBC News poll, released in August, found that 54 percent of Americans believe that abortion should be legal in all or most cases. Much of the country appears to be in the middle, with the poll finding that 23 percent of respondents said abortion should be legal “most of the time” and that 34 percent said it should be illegal “with exceptions.”
Pro-abortion protestors were seen outside the Supreme Court on Wednesday dressed in bright teal, with signs reading “liberate abortion” and “abortion is essential,” chanting in support of abortion access.
The rally also attracted lawmakers like Reps. Pramila Jayapal, D-Wash. and Barbara Lee, D-Calif., and Sen. Richard Blumenthal, D-Conn.
“We are here once again to protect abortion and we aren’t going to let anti-choice legislators take away our right,” Lee said. “This is about the freedom to make your own decision over your own body. The right to an abortion isn’t real if only some people can’t access it.”
The Supreme Court, with its 6-3 conservative majority, has yet to rule on the Texas law known as S.B. 8, which bans abortion after about the sixth week of pregnancy. The justices must decide whether two lawsuits challenging the unique structure of the law, which delegates enforcement to private lawsuits, can proceed.
The issue of whether the Constitution provides a right to seek an abortion is not before the court in the Texas challenges, but it is directly present in the Mississippi case.
Chloe Atkins contributed.