The goals of individual judges, based on their recent writings, range from reversing Roe v. Wade to ban clinics from challenging restrictions on behalf of women to relax the standard that states must meet to limit women’s access to the procedure.
Judge Samuel Alito attacked a decades-old precedent that allows doctors and other third parties to sue states over regulations that could interfere with the rights of a pregnant woman. His position would reduce the challenges to state abortion laws.
New internal tensions have arisen in the old controversy, as the six judges appointed by the Republicans in the right wing differ over the reduction of the precedent and clash more sharply with the three liberals appointed by the remaining Democrats.
Judges can take a step closer to their next chapter by meeting privately on Friday to consider banning abortion in Mississippi after 15 weeks of pregnancy.
If judges lifted the ban on abortion for 15 weeks and considered reversing the precedent of decades, it would intensify national divisions. Even if judges finally deny Mississippi’s petition, the case could give individual judges a chance to issue statements regarding the denial, setting out their arguments for future reversals of reproductive rights.
Referring to the traditional balance of interests of the higher court, the appellate court wrote: “Until feasibility, it is up to the woman, not the state, to weigh any risks to maternal health and to consider personal values and beliefs when deciding whether to have an abortion. ”
The pending Mississippi case already shows signs of conflict between the judges: They considered it, but then postponed the action on the dispute for almost six months, listing it for discussion in private sessions, but offering no word on whether to reject it. , as did similar cases of banning abortion in early pregnancy, or scheduling the controversy for oral argument and decision.
Disputes in this area of law almost always reach the vote of a single judge and generate tensions everywhere.
On the current bench, judges Thomas, 72, Alito, 70, and Gorsuch, 53, have established relatively firm ground. Roberts, 66, and Judge Brett Kavanaugh, 56, voted to facilitate the legal test covering state abortion regulations and sent mixed signals about the overriding of the central precedent.
The court’s new and sixth conservative, Judge Amy Coney Barrett, 49, has yet to write about an abortion case. Before joining the bench, she expressed skepticism about reproductive rights.
Barrett refused to testify to express his views and said he could not “commit” to the issue of abortion.
On the left side of the bench, judges Breyer, 82, Sonia Sotomayor, 66, and Elena Kagan, 60, consistently voted to reaffirm the right to abortion and to diminish the states’ power to restrict women’s access to the procedure.
In urging judges to hear Mississippi’s appeal of the lower court’s decision, state attorney general Lynn Fitch asked the court to clarify its standard, prohibit clinical trials on behalf of women, and eliminate the dividing line for restrictions based on feasibility. of the fetus.
The Jackson Women’s Health Organization, represented by lawyers at the National Center for Reproductive Rights, countered that for almost 50 years the Supreme Court has said that states cannot prevent a woman from terminating a pregnancy before the fetus is able to survive outside her body. .
“Before viability,” they wrote, “the interests of the state, whatever they may be, cannot override the interests of a pregnant person in his freedom and autonomy over his own body.”
Where Alito and Thomas want the court to go
On the touchstone of original abortion, Roe v. Wade, the judges declared that women have a constitutional right to privacy that includes the decision to terminate the pregnancy.
Thomas was very provocative in urging his colleagues to reconsider these decisions.
Alito has focused on the legal situation of third parties, that is, the ability of one party to enforce a right on behalf of another with common interests.
He says that this creates conflicts of interest between abortion providers and women seeking their services; Advocates of abortion rights say clinics are better positioned to claim rights than pregnant women and can be especially vulnerable to harassment.
In the Louisiana controversy over accreditation requirements for doctors who perform abortions, Alito wrote: “The idea that a regulated party can invoke the right of a third party to attack the legislation enacted to protect the third party is impressive. apparent interesting conflict, this concept would be rejected immediately in a case that did not involve abortion. “Alito was accompanied in this part 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 lawmakers. He also criticized a balance test used by a majority of the court in a 2016 abortion case and invoked by liberals in 2020 as “little more than the judicial version of a hunter’s stew: throw anything that looks interesting, move it and season to taste. ”
This test, detailed in a 2016 case that overturned a Texas law, requires judges to balance the health benefits that regulation can offer pregnant women with its potential burden on their right to abortion.
Louisiana’s 2020 case involved a medical constraint similar to the Texas measure. Based on the 2016 case, Roberts provided liberals with the fifth vote to invalidate the Louisiana version. But he, like his conservative brothers, found the 2016 case pattern flawed.
(He refused to sign Breyer’s opinion, which was joined by Sotomayor, Kagan and the late judge Ruth Bader Ginsburg.)
Referring to the 1992 Supreme Court framework that set the standards, Roberts wrote in the 2020 case: “Nothing about Casey suggested that weighing the costs and benefits of abortion regulation was a job for the court.”
And the president of the court, no longer the decisive vote on abortion, but still influential, added that trying to do so “would require us to act as legislators, not as judges”.