Supreme Court conservatives want to topple abortion rights — but can’t agree on how #Breaking112
The aims of individual justices, based on their recent writings, range from reversing Roe v. Wade to forbidding clinics from challenging restrictions on behalf of women to relaxing the standard that states must meet to limit women’s access to the procedure.
Justice Samuel Alito has attacked decades-old precedent that allows physicians and other third parties to sue states over regulations that might impinge on a pregnant woman’s rights. His position would reduce challenges to state abortion laws.
New internal tensions in the age-old controversy have emerged, as the six Republican-appointed justices on the right wing diverge on curtailing precedent and more sharply clash with the court’s three remaining Democratic-appointed liberals.
The justices could move a step closer to their next chapter as they meet privately on Friday to consider whether to take up Mississippi’s ban on abortions after 15 weeks of pregnancy.
If the justices were to take up a 15-week abortion ban and consider reversing decades-old precedent, it would intensify national divisions. Even if the justices ultimately deny the Mississippi petition, the case could give individual justices a chance to issue statements relative to the denial, laying out their arguments for future rollbacks of reproductive rights.
Referring to the high court’s traditional balancing of interests, the appellate court wrote, “Until viability, it is for the woman, not the state, to weigh any risks to maternal health and to consider personal values and beliefs in deciding whether to have an abortion.”
The pending case from Mississippi already reveals signs of conflict among the justices: They have considered but then postponed action on the dispute for nearly six months, listing it for discussion in private sessions yet offering no word on whether they would reject it, as they have similar cases of early-pregnancy abortion bans, or schedule the controversy for oral argument and decision.
Disputes in this area of the law nearly always come down to the vote of a single justice and generate tensions all around.
On the current bench, Justices Thomas, 72, Alito, 70, and Gorsuch, 53, have staked out relatively firm ground. Roberts, 66, and Justice Brett Kavanaugh, 56, have voted to ease the legal test covering state regulation of abortion and sent mixed signals on overruling core precedent.
The court’s new, sixth conservative, Justice Amy Coney Barrett, 49, has yet to write on an abortion case. Before joining the bench, she expressed skepticism for reproductive rights.
Barrett declined in testimony to express her views and said she could not “pre-commit” on the subject of abortion.
On the left side of the bench, Justices Breyer, 82, Sonia Sotomayor, 66, and Elena Kagan, 60, have consistently voted to reaffirm abortion rights and diminish the power of states to restrict women’s access to the procedure.
In urging the justices to hear Mississippi’s appeal of the lower court ruling, state Attorney General Lynn Fitch has asked the court to clarify its standard, to disallow clinic lawsuits on behalf of women and to erase the dividing line for restrictions based on the viability of the fetus.
The Jackson Women’s Health Organization, represented by lawyers from the national Center for Reproductive Rights, countered that for nearly 50 years the Supreme Court has said states may not prevent a woman from ending her pregnancy before the fetus would be able to survive outside her body.
“Before viability,” they wrote, “the State’s interests, whatever they may be, cannot override a pregnant person’s interests in their liberty and autonomy over their own body.”
Where Alito and Thomas want the court to go
In the original abortion touchstone, Roe v. Wade, the justices declared that women have a constitutional right to privacy that covers the decision to end a pregnancy.
Thomas has been most provocative in urging his colleagues to reconsider those decisions.
Alito has focused on third-party legal standing, that is, the ability of a party to assert a right on behalf of another with shared interests.
He says that creates conflicts of interest between abortion providers and the women who seek their services; abortion-rights advocates counter that clinics are better positioned to vindicate rights than women who are pregnant and may be especially vulnerable to harassment.
In the Louisiana controversy over credentialing requirements for physicians who perform abortions, Alito wrote: “The idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.” Alito was joined in that portion of his opinion by Thomas and Gorsuch.
In the same case — June Medical Services v. Russo — Gorsuch wrote that the court owed greater deference to state legislators. He also criticized a balancing test used by a court majority in a 2016 abortion case and invoked by liberals in 2020 as “little more than the judicial version of a hunter’s stew: Throw in anything that looks interesting, stir, and season to taste.”
That test, detailed in a 2016 case that struck down a Texas law, requires judges to balance the health benefits that a regulation might offer pregnant women with its potential burden on their right to an abortion.
The 2020 Louisiana case involved a physician restriction similar to the Texas measure. Based on the 2016 case, Roberts provided the fifth vote to liberals to invalidate the Louisiana version. But he, like his conservative brethren, found the standard from the 2016 case flawed.
(He declined to sign the Breyer opinion that was joined by Sotomayor, Kagan and the late Justice Ruth Bader Ginsburg.)
Referring to the 1992 Supreme Court milestone that set out standards, Roberts wrote in the 2020 case, “Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the court.”
And the chief justice, no longer the swing vote on abortion yet still influential, added that trying to do so “would require us to act as legislators, not judges.”