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Fate of Roe v. Wade in the hands of the Supreme Court after spirited arguments

During Supreme Court oral arguments on Dec. 1, Justice Sonia Sotomayor pointedly refuted several arguments supporting a Mississippi anti-abortion law. (Video: The Washington Post)
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The Supreme Court on Wednesday signaled that it is on the verge of a major shift in its abortion jurisprudence after hearing nearly two hours of arguments from attorneys for Mississippi, an abortion provider from the state and the Biden administration.

Mississippi Solicitor General Scott G. Stewart said the landmark decisions of Roe v. Wade and Planned Parenthood v. Casey “haunt our country” and “have no home in our history or traditions” as he defended a state law that bans most abortions after the 15th week of pregnancy.

Attorney Julie Rikelman, a lawyer representing an abortion provider that sued, pushed back, saying the Mississippi law would do “profound damage to women’s liberty, equality and the rule of law.” U.S. Solicitor General Elizabeth B. Prelogar, also arguing on behalf of the provider, warned that “the real-world effects of overruling Roe and Casey would be severe and swift,” predicting a wave of new restrictions in many states.

Here’s what to know:

  • In accepting the Mississippi case, Dobbs v. Jackson Women’s Health Organization, the court said it will decide whether all prohibitions on abortion before viability are unconstitutional.
  • Justice Sonia Sotomayor warned that the court would risk losing legitimacy if it overturned Roe, asking: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
  • Justice Samuel Alito, during a discussion of the issue of viability, emphasized that “the fetus has an interest in having a life.”
  • Past court rulings, public appearances and other public comments by the nine justices give insight into their thinking on abortion and court precedents.
  • The case probably will not be decided for months.
11:50 a.m.
Headshot of Ann Marimow
Ann Marimow: The Biden administration is represented by Prelogar, who is arguing on behalf of Mississippi’s sole abortion provider and telling the court not to overturn Roe v. Wade.Prelogar was confirmed by the Senate last month as the government’s top advocate at the court and is just the second woman to hold the position. The 53-to-36 vote came days before Prelogar argued against a Texas law barring abortion after the sixth week of pregnancy.Prelogar told the court then that “no constitutional right is safe” if the justices allow the Texas law to stand.The justices have yet to rule in the Texas case.
Ann Marimow, Legal affairs reporter
11:16 a.m.
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Ann Marimow: Chief Justice John G. Roberts Jr. is not one to tip his hand during arguments, but he has previously shown an inclination for moderation and allegiance to past decisions. Last year, he joined the court’s liberal justices in striking down a Louisiana law restricting abortion.Roberts said the law could not stand because of a court ruling four years earlier overturning a similar Texas law. Even though Roberts said he thought the Texas case was “wrongly decided” — and had dissented in that case — he said the court was required, “absent special circumstances,” to “treat like cases alike.”On Wednesday, he pressed the lawyer for the Mississippi abortion provider about the prospect of upholding the state’s law banning the procedure after 15 weeks into pregnancy.“That’s not a dramatic departure from viability,” Roberts said, asking, “why is 15 weeks not enough time” to obtain an abortion?Roberts said the 15-week mark is the “standard that the vast majority of other countries have.”Attorney Julie Rikelman of the Center for Reproductive Rights disagreed. The majority of countries, including Canada and Great Britain, she said, permit access to abortion up to viability, usually between 22 and 24 weeks.“It’s cutting the time period to obtain an abortion roughly in half,” she said.
Ann Marimow, Legal affairs reporter
11:04 a.m.
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Ann Marimow: Several justices — Stephen G. Breyer, John G. Roberts Jr. and Elena Kagan — have asked Mississippi’s solicitor general about “stare decisis,” the legal principle that the court should stand by its past decisions. Mississippi is asking the justices to overrule two long-standing precedents — in Roe from 1973 and Casey from 1992.Kagan noted that the principle is critical to “prevent people from thinking that this court is a political institution that will go back and forth depending on what part of the public yells loudest and preventing people from thinking that the court will go back and forth depending on changes to court’s membership.”The court’s newest justice, Amy Coney Barrett, replaced the late Justice Ruth Bader Ginsburg, a strong supporter of abortion rights, and is seen as critical to the outcome of the case. Barrett was outspoken about her antiabortion views and criticized Roe during her tenure as a University of Notre Dame law professor.But Barrett has said she would separate her personal views from her duty to respect court precedent. Last term, both Barrett and Justice Brett M. Kavanaugh did not go along with fellow conservatives in overturning court precedent in a case on religious rights that had long been a target of lawyers representing religious groups.Barrett wrote that she thought the case might have been wrongly decided but that it was not clear what should replace it.On Wednesday, she noted the “benefits of stare decisis” but also said in an exchange with Stewart that the principle is “not an inexorable command and that there are some circumstances in which overruling it is possible.”
Ann Marimow, Legal affairs reporter
10:28 a.m.
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Ann Marimow: Mississippi’s law bans abortion two months earlier than is currently permitted by court precedent, which sets the mark at around 23 weeks into pregnancy when a fetus could survive outside the womb.Expect to hear a lot of questions from the justices about “viability” and what new standard the court could set for judging the legality of abortion restrictions. Legal observers say it would be difficult to uphold the Mississippi law without changing the court’s past holdings that pre-viability bans are unconstitutional.Justice Clarence Thomas posed the first question to Mississippi’s lawyer, asking how the court should handle the existing viability line if it does not overturn past precedent in Roe and Casey.In Casey, the court affirmed the right to abortion and said states could not place an “undue burden” on women seeking abortion before viability. Mississippi has argued that its law does not create an undue burden because the state has just one abortion clinic that performs the procedure only up to 16 weeks of pregnancy. The law, the state says, thus “reduces by only one week the time in which abortions are available in Mississippi.”
Ann Marimow, Legal affairs reporter
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