Supreme Court legitimacy at risk in abortion ban case, Northeastern legal expert says

protestors stand outside supreme court building holding orange letters that spell abortion rights
Reproductive rights activists hold abortion rights cut out letters as oral arguments in Dobbs v. Jackson Womens Health Organization case are held. The case considers the constitutionality of Mississippis restrictive ban on abortion after 15 weeks. Photo by Bill Clark/CQ-Roll Call, Inc via Getty Images

The U.S. Supreme Court on Wednesday heard arguments in a legal challenge to the Mississippi law banning most abortions after 15 weeks—a law that, if upheld by the court, would be directly at odds with Roe v. Wade

The back-and-forth between the justices and the attorneys seemed to suggest that the high court appears ready to back the state law at the expense of the watershed 1973 ruling, which upheld abortion rights and prohibited states from banning abortion before fetal viability, which is roughly 23 weeks. 

man wearing sweater over button down shirt

Daniel Urman, Director of hybrid and online programs in the School of Law, and director of the Law and Public Policy minor, poses for a portrait. Photo by Matthew Modoono/Northeastern University

Several of the court’s liberal justices, including Sonya Sotomayor and Stephen Breyer, warned their colleagues about putting politics above well-settled law. Sotomayor, at one point, asked: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”

Dan Urman, who teaches constitutional law and the modern U.S. Supreme Court at Northeastern, says throwing out the landmark decisions would further threaten the court’s legitimacy and independent status, adding that “the only thing that has changed since 1992,” when the high court upheld Roe v. Wade in a case called Planned Parenthood v. Casey, “is the court membership.”

“She was, along with Justice Breyer, trying to tell the country that a decision to overturn Roe [and Planned Parenthood v. Casey] shows that the court is political,” Urman says. 

During the hearing, Justice Samuel A. Alito Jr., rebuffing a middle-of-the-road approach proposed by Chief Justice John G. Roberts Jr., reportedly said “the only real options we have” are to reaffirm Roe or to overrule it, according to the New York Times. 

Urman says Roberts was “testing various ideas where he could rule for Mississippi and ‘say’ that he was not overturning [Roe and Casey].”

“He would need to bring along another Republican appointed justice to make that a ruling, though, and based on today’s argument I am not sure if his compromise position—rule for Mississippi but uphold [Roe and Casey]—has any takers,” Urman says. 

Urman also weighed in on Justice Brett Kavanaugh’s list of cases that overturned precedents, which he presented during Wednesday’s hearing.

“Justice Kavanaugh tried to suggest that the Supreme Court frequently overturns precedent, but he did it in a very misleading way,” Urman says. “Nearly every case he cited involved the court taking an issue away from the voters, because it involved fundamental rights. Here, this would be putting abortion rights on the ballot everywhere in America.”

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