Is abortion as a constitutional right under existential threat in US Supreme Court?

Mayank Chhaya-

Mayank Chhaya

America’s Supreme Court, currently dominated by a conservative supermajority of six to three liberal justices, seems to be struggling to retain its thin veneer of ideological independence in the face of a landmark case involving abortion rights across the country.

So far, all signs point to the 6-3 court upholding a Mississippi law which bans abortions after 15 weeks of pregnancy and thereby creating a precedent that would essentially upend what was until recently believed to be the settled law of the land—the 48-year-old Roe v. Wade that established abortion as a constitutional right. It also prohibited states from banning abortion 23 weeks until fetal viability.

That landmark law could be off the statute books if the apex court with six conservative justices upholds the Mississippi law as their observations in the oral arguments before them would seem to suggest. In fact, there are apprehensions among pro-abortion rights advocates that some of the justices could go as far as to discard the 1973 Roe v. Wade decision altogether barely two years before its 50th anniversary. If that does indeed happen it would come in the midst of the 30th anniversary of it being reaffirmed in 1992 in the Planned Parenthood v Casey case.

The apprehension that the conservative supermajority is poised to dismantle abortion as a constitutional right prompted Justice Sonia Sotomayor, one of the three liberal justices, to make a stunning comment that now reverberates in the halls of American jurisprudence.

Justice Sotomayor was worried enough to wonder, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

“If people actually believe that it’s all political, how will we survive?” she asked. “How will the court survive?”

The use of the word “stench” seemed to be a deliberate one given that her six fellow justices showed signs of keeping the court either agnostic or neutral to the question of the fetal viability between 15 weeks and 23 weeks to some even seemingly leaning towards getting rid of Roe V. Wade.

This particular case before the Supreme Court that threatens to devour the 1973 law flows from a decision in 2018 by the Republican-dominated legislature of Mississippi that banned abortions if “the probable gestational age of the unborn human” was more than 15 weeks. It was designed to be a challenge to Roe v. Wade.

What has made the likely dismantling of Roe v. Wade possible are the appointments of three conservative judges by former President Donald Trump in Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Their appointments skewed the court towards conservatism with three more seasoned ones already there in Chief Justice John G. Roberts, Justice Clarence Thomas and Justice Samuel Alito. The three liberal justices are Sotomayor, Elena Kagan and Stephen G. Breyer.

Although the nine justices have themselves generally asserted that the court is not manifestly partisan as perceived popularly, their political and ideological preferences do inform their rulings. That thin veneer ideological independence or agnosticism could crack up in the face of the Mississippi law. In September, 2019, Justice Gorsuch was quoted as saying that it was “rubbish” to suggest that justices were “politicians in robes.” In a more recent echo of that assertion, Justice Coney Barrett dismissed at a public event in Kentucky the idea that the supreme court “comprised of a bunch of partisan hacks”.

However, on the issue of abortion as a constitutional right those assertions could be severely tested and may even fail. It is possible to argue that even if the six conservative justices rule to uphold the Mississippi law and thereby effectively end abortion as a constitutional right, it would not be as a concerted partisan assault on it but out of their genuine moral and legal convictions. But that could come in the face of 60 percent of Americans saying Roe v. Wade should remain as opposed to 27 percent saying it should be overturned, according to a recent ABC News/ Washington Post poll.

If the ruling in this case does come down along the lines of justices’ presumed ideological predilections, the three liberal-leaning justices could feel sorely cornered in a court that otherwise does not want to be seen as made up of “politicians in robes” or “partisan hacks.”

It has not been lost on most that both Justice Coney Barrett and Justice Kavanaugh have taken positions during the hearing of this case which would be practically diametrically opposite of what they said during their senate confirmation hearings. They both essentially said Roe v. wade was a “settled” law of the land.

“It’s not the law of Amy,” Barrett had told senators. “It’s the law of the American people.”

Her colleague Kavanaugh had said during his confirmation that “the Supreme Court has recognized the right to an abortion since the 1973 Roe v. Wade case — has affirmed it many times.”

The Supreme Court’s decision in the Mississippi case is not expected before June or July 2022, but the direction of its vote along the expected ideological lines seems clear. Of course, it is always possible that some amount of rethinking or realigning could happen among the nine justices in the interregnum. However, as things stand on the basis of the observations made this week, the writing on the wall is quite legible.

There are some who think that Chief Justice Roberts’s apparent approach of upholding the Mississippi law even while not expressly overturning Roe v. wade could be an important point to watch out. It would be remarkable if the essential idea of abortion as a federally protected constitutional right could survive Roberts’s narrower approach of changing the line of fetal viability.