The US Supreme Court indicated on Wednesday (1) that it could change its understanding of abortion and, with that, open space for new restrictions on the practice, in what would be a historic reversal of the decision that released the procedure, nearly 50 years ago.
The Court currently has a majority of conservative judges, from 6 to 3. Of the six, four of them indicated in a hearing this Wednesday (1) that they must vote in favor of maintaining valid a state law in Mississippi, which prevents abortion after 15 weeks of pregnancy. If this law is considered constitutional, the decision will open space for more states to adopt such rules.
The court held a hearing on the case on Wednesday (1), to hear arguments from both sides, and the judges also ruled. The final decision, however, has no scheduled date and could take months.
Mississippi law does “profound harm to women’s freedom, equality and law enforcement,” said Julie Rikelman, a lawyer for the Jackson Women Health organization, which brought the action against the measure.
Elizabeth Prelogar, who represents the US government before the Supreme Court, also spoke. “For 50 years, this court has correctly recognized that the Constitution protects a fundamental right of women to decide whether to terminate a pregnancy before viability [do feto]. This guarantee, that the State cannot force a woman to carry on a pregnancy and give birth, generated great confidence for people and society. The effects in the real world of nullifying it would be serious and fast”, he defended.
On the other side, Scott Stewart, the Mississippi Attorney General, said abortion is not provided for in the Constitution and criticized the Supreme Court ruling that allowed the practice in 1973 and another ruling, in 1992, that reaffirmed it. “These decisions have no place in our tradition. They have damaged the democratic process and poisoned the law. For 50 years, they have held this court at the center of a political battle that never resolves. In no other situation has this court recognized the right to end a human life,” he said.
Abortion was released in the US from the case known as Roe v. Wade, based on the constitutional right to privacy. The understanding was that it would not be up to the government to interfere in a woman’s decision to maintain or not a pregnancy.
In 1992, the court updated its position to consider the concept of fetal viability: women can abort without restriction until such time as the fetus would not be able to survive outside the womb, which tends to happen usually after 22 weeks. After that, each state has its regulations. The gestation period until viability is reached, however, is a matter of debate. Thus, more conservative states created laws that make it difficult or, in practice, even prevent abortion.
On Wednesday, Judge John Roberts, who presides over the court, said adopting the 15-week rule would not be a “dramatic departure” from the concept of viability, and that he considered the time period sufficient for a woman to exercise her right to decide. Thus, Mississippi law would be a way to reconcile the positions against and in favor of abortion.
Brett Kavanaugh, another conservative judge, pointed out that even if the decision on abortion was left to the states, the practice would still be adopted by some of them, and hinted that he felt it was not up to the Supreme Court to decide on the practice itself. Judges Clarence Thomas and Neil Gorsuch also favored the change of understanding.
Judge Sonia Sotomayor argued that the court maintains the pro-abortion position, and that a change now would send the message that the court acts politically, not technically, by changing its mind just because there are more conservative judges than before. . Stephen Breyer, another liberal magistrate, also defended the maintenance of the previous decisions.
The Mississippi law, which vetoes abortion even in cases of rape after the 15th week, was enacted in 2018, but barred in local courts for going against decisions that allowed abortion in the country. The case reached the Supreme Court and was chosen by the judges to serve as an answer to other similar questions.
In another recent case, in September, Texas passed a state law that would ban the procedure after six weeks of pregnancy, by which time many women have not even discovered they are pregnant. Texas law holds that the fetus is viable if the heart is beating.
Abortion is one of the themes that generate the most polarization in US politics. Conservative politicians and Republicans tend to advocate the ban, while Democrats and liberals support allowing the practice to be allowed.
In recent years, Republican-ruled states have adopted new rules to curtail abortion rights, especially in the south and midwest of the country, with an eye to pleasing conservative voters. On the other hand, states governed by Democrats, such as California and New York, have created laws that guarantee and facilitate the right to terminate a pregnancy.
​According to a survey by the Pew Research Center, 59% of Americans believe abortion should be legal, and 39% want to ban it.
Between 2017 and 2020, former President Donald Trump had the opportunity to nominate three justices to the Supreme Court, which ensured the current conservative majority. The last nomination was for Amy Coney Barrett in September 2020, just months before the presidential election that culminated in Joe Biden’s victory. Magistrates have terms of office for life, and a further change in the composition of the court may take time.
WHO IS WHO IN THE SUPREME COURT
Conservative wing
Jonh Roberts, 66
Nominated by George W. Bush in 2005. Though considered conservative, the current President of the Court sometimes acts in a moderate manner.
Clarence Thomas, 73
Nominated by George Bush Sr. in 1991
Samuel Alito, 71
Nominated by George W. Bush in 2006
Neil Gorsuch, 54
Nominated by Donald Trump in 2017
Brett Kavanaugh, 56
Nominated by Trump in 2018
Amy Cohen Barrett, 49
Nominated by Trump in 2020
Liberal wing
Stephen Breyer, 83
Nominated by Bill Clinton in 1994
Sonia Sotomayor, 67
Nominated by Barack Obama in 2009
Elena Kagan, 61
Nominated by Obama in 2010
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