The Supreme Court Considers Overturning Roe v. Wade (2021)

We'll delve into the implications of this a little later. But first, the future of abortion rights took center stage at the U.S. Supreme Court. The Justices has heard arguments this morning over a Mississippi law that bans abortions after 15 weeks of pregnancy. And outside the court building, recognizing one of the most consequential cases about the issue in decades, dozens of protesters on both sides gathered en mass. To break down the arguments and the potential fallout, we turned to Marsha Coil, Chief Washington correspondent for the National Law Journal. She was in the courtroom today for the oral arguments. And Mary Ziegler, a Florida State University law professor and author of the book Abortion and the Law in America. And welcome back to the program. Hello to both of you. Marsha, before we get into the specifics of today, remind us what the Justices are being asked to decide here. Marsha Coil: All right. The State of Mississippi in 2018 enacted a ban on abortions after 15 weeks of pregnancy.

Lower courts struck it down. Mississippi came to the U.S. Supreme Court asking, are all prohibitions on pre-viability abortions unconstitutional, as Roe and Casey have said they are? And then it also asked the court to overturn Roe and Casey, the court's landmark abortion rights rulings. Judy Woodruff: So it grew from an original question. Marsha Coil: It did. Judy Woodruff: To a much bigger one. And Mary Ziegler, we can't always tell from what the Justices are saying, what might happen in a case. What did you hear today from these Justices? Mary Ziegler: Well, going into this case, I expected the focus of the argument to be on viability. And while I was convinced that the court would eventually overrule Roe, I wasn't convinced that they would do so in this case. Basically, I thought they might eliminate viability as the line at which case states could criminalize abortion. And then maybe work their way up to overruling Roe in a later case. What I heard today was that many of the Justices seemed potentially ready to overturn Roe now.

Amy Coney Barrett asked questions suggesting that women didn't need access to abortion. They could simply put children up for adoption. I don't think these are questions you ask if you're not seriously considering reversing Roe, which is what I fully expect the court to do, and more likely sooner than that. Judy Woodruff: Well, let's talk about some of the specifics of what we heard today, Marcia. I think it was clear in the first few minutes of these oral arguments that this case was one of great consequence. And we heard Justice Breyer raise the critical question of overturning precedent, stare decisis. He spoke in reference to the 1992 abortion decision, Casey, which you just mentioned. We have an audio recording of that. He makes a comment, and then you hear from the Mississippi State Solicitor General Scott Stewart. Justice Breyer: What the court said follows from that is that it should be more unwilling to overrule a prior case. Far more unwilling, we should be.

Whether that case is right or wrong, than the ordinary case. It is particularly important to show what we do in overturning a case is grounded in principle, and not social pressure, not political pressure. Mississippi State Solicitor General Scott Stewart: I would not say it was the people that called this court to end the controversy. The people, you know, many, many people vocally really just wanted to have the matter returned to them so that they could decide it locally. Judy Woodruff: And, Marcia, I want to now have everyone here. Another comment on precedent. This from the conservative Justice Brett Kavanaugh. Brett Kavanaugh: I want to ask a question about stare decisis and to think about how to approach that here. If we think that the prior precedents are seriously wrong, if that, why then doesn't the history of this court's practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality.

Judy Woodruff: So, Marsha, precedent is everything. Marsha Coil: It absolutely is. And Justice Breyer, for Justice Breyer, was quite passionate in reading the section of Casey on starre decisis, which, as you know, is the Latin phrase meaning, to stand by the thing in the context of law, stand by the prior decision. And he said, you know, that Casey went through step by step by step, all of the factors that the court applies when trying to decide whether to overrule a case. And in Casey, they were looking at overruling Roe. And the court came to the conclusion, no that these factors did not justify overruling Roe. So, Justice Breyer was saying, you know, what has changed here? Nothing. And if we do this without being principled and with reason, the court's legitimacy is going to be at stake. On the other hand, Justice Kavanaugh is saying, well, if it's egregiously wrong, why don't we go back to what our prior practice was, which is to be neutral. But the other lawyers for the clinic, the abortion clinic, made it clear that the court has never really said that a precedent being egregiously wrong was enough to overrule it.

In fact, Chief Justice Roberts has even said that. Judy Woodruff: And we know, in addition to precedent, there was one consideration that came up a number of times this morning. And that was the viability of the fetus, in a pregnant woman, the conservative justice is Mary. And I'm going to come to you after we listen to this, question the so-called viability standard. Here's an excerpt from the Chief Justice, John Roberts, followed by a later comment by U.S. Solicitor General, Elizabeth Prelogger, who is arguing against the Mississippi law. Let's listen to this. Chief Justice John Roberts: If you think that the issue is one of choice, women should have a choice to terminate their pregnancy, that supposes that there is a point at which they've had the fair choice, an opportunity to choice. And why would 15 weeks be an inappropriate line?

The viability, it seems to me, doesn't have anything to do with choice. But if it really is an issue about choice, why is 15 weeks not enough time? U.S. Solicitor General, Elizabeth Prelogger: The question is, why would women need access to abortion after 15 weeks and what is the effect on them? And there are any number of women who cannot get an abortion earlier. They don't realize that they're pregnant, that's especially true of women who are young or don't have, have experienced a pregnancy before, or their life circumstances change, they lose their job, or their relationship breaks apart, or they have medical complications. Or for many women, they don't have the resources to pay for it earlier.