WASHINGTON — The Supreme Court's new conservative majority will weigh in for the first time Wednesday on the future of abortion rights — hearing arguments that could determine whether it limits the scope of Roe vs. Wade or overturns it entirely.
Mississippi's Attorney General Lynn Fitch is defending a state law that bans abortion after 15 weeks of a pregnancy, even though under Roe, abortion rights have been protected until about 24 weeks.
Last year, Fitch filed an appeal that only urged the court to permit tighter time limits on abortion. But after the court agreed to hear her case, Dobbs vs. Jackson Women's Health Organization, she switched course and urged the justices to overrule Roe vs. Wade entirely. She argued that states should be free to make nearly all abortions a crime.
The case presents the greatest threat to abortion rights since 1973 because of the changed court. Justices Clarence Thomas and Samuel A. Alito Jr. are determined foes of abortion rights, and they have been joined by President Trump's three appointees: Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
If the five vote as a bloc, they could decide the Constitution says nothing about abortion and hold that the decision in Roe was a mistake. It is also possible that Kavanaugh and Barrett may prefer a decision confined to the 15-week limit, not the right to abortion itself.
Still pending before the court is an abortion rights challenge to a Texas law that makes it illegal for doctors or clinics to terminate a pregnancy after six weeks. The state itself does not enforce the measure, known as Senate Bill 8. Instead, it authorized private lawsuits against those who violate it. That threat has shut down most abortions in Texas.
In early September, the court by a 5-4 vote refused to block the Texas abortion ban, citing procedural complexities. The justices then heard arguments on Nov. 1 to decide whether federal judges could block Texas courts from enforcing SB 8. The delay in deciding, now extending for three months, has kept the Texas ban in place.
On Wednesday, the Biden administration's Solicitor General Elizabeth Prelogar will join Julie Rikelman, an attorney for the Center for Reproductive Rights, in urging the court to stand by its precedents and leave the abortion decision in the hands of pregnant women, not the government.
They are defending the court's past promises that women may choose abortion until about the 24th week of a pregnancy, the time when the fetus may be capable of surviving outside the womb on its own.
They point out that the court in 1992 reconsidered the Roe vs. Wade decision and ultimately upheld the right to abortion by a 5-4 vote in Planned Parenthood vs. Casey. Justice Anthony M. Kennedy, a Reagan appointee, cast a key vote to preserve the right to abortion. Now, with Kennedy retired, two of his former clerks — Kavanaugh and Gorsuch — could cast the votes to overturn that decision.