WASHINGTON (AP) – Both sides tell the Supreme Court that there is no middle ground in Wednesday’s standoff over abortion. Judges can either reaffirm the constitutional right to abortion or abolish it altogether.
Judges should begin hearing oral arguments at 10 am ET. Listen in the player above.
Roe v. Wade, a landmark 1973 ordinance proclaiming nationwide abortion rights, faces the biggest challenge in 30 years before a 6-3 conservative majority trial that was changed by President Donald Trump’s three appointees.
“There are no half measures here,” said Sheriff Girgis, a Notre Dame law professor who once served as a clerk at Samuel Alito’s court.
According to the Guttmacher Institute, a research organization that supports abortion rights, the decision that overturned the Rowe and Casey case in 1992 would result in outright bans or severe restrictions on abortion in 26 states.
The case, which is being discussed Wednesday, comes from Mississippi, where a 2018 law prohibits abortion after 15 weeks of pregnancy, long before it is viable. The Supreme Court has never allowed states to prohibit abortion until a fetus can survive in about 24 weeks.
Judges are separately weighing the dispute over a much earlier abortion ban in Texas, roughly six weeks in advance, although the cases are about the unique structure of the law and how it can be challenged in court, not abortion rights. Nonetheless, abortion rights advocates were concerned that a 5-4 vote was cast in court in September to bring Texas civil law enforcement law into effect first.
WATCH: How Pregnant American Women May Affect The Supreme Court’s Decision On Mississippi Abortion Law
“This is the biggest concern I’ve ever had,” said Shannon Brewer, who runs the only abortion clinic in Mississippi, Jackson’s Women’s Health Organization.
The clinic offers abortions for up to 16 weeks, Brewer said, and about 10 percent of the abortions it performs occur after 15 weeks.
She also noted that since the Texas law came into force, the clinic has significantly increased the number of patients who work five or six days a week instead of two or three.
Lower courts have blocked Mississippi law because they have other bans on abortion that use traditional methods of enforcement by state and local authorities.
The Supreme Court has never even agreed to try a premature abortion case before. But following the death of Judge Ruth Bader Ginsburg last year and her replacement by Judge Amy Connie Barrett, Trump’s third appointee, the court said it would consider the case.
Trump has pledged to appoint “defenders of life” and predicted that they will spearhead the lifting of abortion orders. Only one judge, Clarence Thomas, has publicly called for the overturn of Rowe’s decision.
WATCH: Supreme Court considers Texas abortion law “deterrent”
The court could have upheld Mississippi law without explicitly overturning Rowe and Casey, which would not have satisfied either side.
Abortion rights advocates say the outcome would be tantamount to an outright ruling overturning previous cases because it erases the logic behind nearly half a century of Supreme Court law.
“The decision to support this ban is tantamount to canceling Rowe. The ban bans abortion about two months before viability, ”said Julie Rickelman, who will be advocating for the clinic.
On the other hand, opponents of abortion argue that the court, in fact, invented the abortion law in Rowe and Casey, and should not repeat this mistake in this case.
“If the judges stick to Mississippi law, they’ll have to explain why,” said Thomas Jipping, a research fellow at the Heritage Foundation. According to Jipping, they can either cancel two important cases or come up with another made-up rule.
Conservative commentator Ed Whelan said such an outcome would be a “massive defeat” on par with Casey’s 1992 ruling, in which a trial with eight justices appointed by Republican presidents unexpectedly confirmed Rowe.
This court seems far more conservative than the one that ruled in the Casey case, and law historian Mary Ziegler of the University of Florida School of Law said the court is likely to “overturn Rowe’s decision or put us on track.”
Chief Justice John Roberts may find a more gradual approach attractive if he can convince the majority in the court to agree. Since Roberts became chief judge in 2005, the court has moved in smaller steps on some issues, even when it seemed like it was only a binary choice.
It took the court two cases to rip apart the federal voting rights law, which restricted potentially discriminatory voting laws in formerly discriminated states.
LISTEN: Texas Supreme Court passes law banning most abortions
With regard to organized labor, the court dealt with a series of cases that weakened the influence of trade unions in the public sector.
The High Court also heard two rounds of arguments over restrictions on independent spending in the political arena before lifting restrictions on how much money corporations and unions can invest in campaigning.
If the court examines public opinion, it will find polls after polls that show support for keeping Rowe, although some polls also find support for stricter abortion restrictions.
Mississippi is one of 12 states ready to act almost immediately if Rowe is overturned. These states passed so-called “trigger” abortion laws, which went into effect and banned all or nearly all abortions.
In these states, women seeking an abortion will have to travel hundreds of miles to get to the nearest clinic, or they may receive abortion pills in the mail. Medical abortion now accounts for 40 percent of abortions.
Some of the legal clues in the case make it clear that Rowe’s end is not the ultimate goal of anti-abortion opponents.
The Court must recognize that “unborn children are individuals” under the 14th Amendment to the Constitution, a conclusion that will bring an end to nearly all legal abortion, was written by Princeton professor Robert George and scientist John Finnis. Finnis advised Judge Neil Gorsach on his Oxford dissertation, The Argument Against Assisted Suicide.