Why the Supreme Court may reverse Roe in Mississippi abortion ban case

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• Judy Woodruff:

  We have two major stories tonight.

  The first case of the Omicron variant of COVID was detected in the U.S. today, something most health officials had said was inevitable. We will delve into the implications of this a little later.

  But, first, the future of abortion rights took center stage at the U.S. Supreme Court. The justices heard arguments this morning over a Mississippi law that bans abortions after 15 weeks of pregnancy.

  And outside the court building, recognizing one of the most consequential cases about the issue in decades, dozens of protesters on both sides gathered en masse.

  To break down the arguments and the potential fallout, we turn to Marcia Coyle, chief Washington correspondent for "The National Law Journal." She was in the courtroom today for the oral arguments. And Mary Ziegler, a Florida State University law professor and author of the book "Abortion and the Law in America."

  And welcome back to the program.

  Marcia Coyle, "The National Law Journal": Thanks, Judy.

• Judy Woodruff:

  Hello to both of you.

  Marcia, before we get into the specifics of today, remind us what the justices are being asked to decide here.

• Marcia Coyle:

  All right.

  The state of Mississippi in 2018 enacted a ban on abortions after 15 weeks of pregnancy. Lower courts struck it down. Mississippi came to the U.S. Supreme Court asking, are all prohibitions on pre-viability abortions unconstitutional, as Roe and Casey have said they are?

  And it then also asked the court to overturn Roe and Casey, the court's landmark abortion rights rulings.

• Judy Woodruff:

  So, it grew from an original question…

• Marcia Coyle:

  It did.

• Judy Woodruff:

  … to a much bigger one.

  And, Mary Ziegler, we can't always tell from what the justices are saying what might happen in a case, but what did you hear today from these justices?

  Mary Ziegler, Florida State University College of Law: Well, going into this case, I expected the focus to be on viability.

  And while I was convinced that the court would eventually overrule Roe, I wasn't convinced that they would do so in this case. I thought they might eliminate viability as the line at which states could criminalize abortion, and then maybe work their way up to overruling Roe in a later case.

  What I heard today was that many of the justices seemed potentially ready to overturn Roe now. Amy Coney Barrett asked questions suggesting that women didn't need access to abortion. They could simply put children up for adoption.

  I don't think these are questions you ask if you're not seriously considering reversing Roe, which is what I fully expect the court to do, and more likely sooner than not.

• Judy Woodruff:

  Well, let's talk about some of the specifics of what we heard today.

  Marcia, I think it was it was clear in the first few minutes of these oral arguments that this case was one of great consequence. And we heard Justice Breyer raise the critical question of overturning precedent, stare decisis.

  He spoke in reference to the 1992 abortion decision, Casey, which you just mentioned. We have an audio recording of that.

  He is — he makes a comment, and then you hear from the Mississippi state solicitor general, Scott Stewart.

• Stephen Breyer, U.S. Supreme Court Associate Justice:

  What the court said follows from that is that it should be more unwilling to overrule a prior case, far more unwilling, we should be, whether that case is right or wrong, than the ordinary case.

  It is particularly important to show what we do in overturning a case is grounded in principle, and not social pressure, not political pressure.

• Scott Stewart, Mississippi Solicitor General:

  I would not say it was the people that called this court to end the controversy. The people, many, many people vocally really just wanted to have the matter returned to them, so that they could decide it, decide it locally.

• Judy Woodruff:

  And, Marcia, I want to now have everyone hear another comment on precedent, this from the conservative Justice Brett Kavanaugh.

• Brett Kavanaugh, U.S. Supreme Court Associate Justice:

  I want to ask a question about stare decisis and to think about how to approach that here.

  If we think that the prior precedents are seriously wrong, if that, why then doesn't the history of this court's practice with respect to those cases tells us that the right answer is actually a return to the position of neutrality?

• Judy Woodruff:

  So, Marcia, precedent was — is everything.

• Marcia Coyle:

  It absolutely is.

  And Justice Breyer — for Justice Breyer, it was quite passionate, in reading the section of Casey on stare decisis, which, as you know, is the Latin phrase meaning to stand by the thing, in the context of law, stand by the prior decision.

  And he said that Casey went through step by step by step all of the factors that the court applies when trying to decide whether to overrule a case. And, in Casey, they were looking at overruling Roe. And the court came to the conclusion, no, that these factors did not justify overruling Roe.

  So, Justice Breyer was saying, what has changed here? Nothing. And if we do this without being principled and with reason, the court's legitimacy is going to be at stake.

  On the other hand, Justice Kavanaugh is saying, well, if it's egregiously wrong, why don't we go back to what our prior practice was, which is to be neutral?

  But the other lawyers for the clinic, the abortion clinic, they made it clear that the court has never really said that precedent being egregiously wrong was enough to overrule it. In fact, Chief Justice Roberts has even said that.

• Judy Woodruff:

  And we know, in addition to precedent, there was one consideration that came up a number of times this morning. And that was the viability of the fetus in a pregnant woman.

  The conservative justices, Mary — and I'm going to come to you after we listen to this — questioned the so-called viability standard. Here's an excerpt from the chief justice, John Roberts, followed by a later comment by U.S. Solicitor General Elizabeth Prelogar, who was arguing against the Mississippi law.

  Let's listen to this.

  John Roberts, Chief Justice of the U.S. Supreme Court: If you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they have had the fair choice, opportunity to choice.

  And why would 15 weeks be an inappropriate line? So, viability, it seems to me, doesn't have anything to do with choice. But if it really is an issue about choice, why is 15 weeks not enough time?

• Elizabeth Prelogar, U.S. Solicitor General:

  The question is, why would women need access to abortion after 15 weeks, and what is the effect on them?

  And there are any number of women who cannot get an abortion earlier. They don't realize that they're pregnant. That's especially true of women who are young or don't have — haven't experienced a pregnancy before. Or their life circumstances change. They lose their job, or their relationship breaks apart, or they have medical complications.

  Or, for many women, they don't have the resources to pay for it earlier.

• Judy Woodruff:

  And, Mary, we were saying earlier that the chief justice seems to be searching for a middle ground here?

• Mary Ziegler:

  Right, I think that, going into this — and, I mean, it's a stretch to call it a middle ground, because to get rid of viability as the dividing line would be to reverse a core dimension of Roe v. Wade that's been there since 1973.

  But that seemed to be the solution that Chief Justice John Roberts was interested in. And he returned to this question of viability several times, suggesting essentially that, if there's a right to choose abortion, does it really have to go until 24 weeks? Why couldn't it be, for example, 12 weeks or 15 weeks, when most abortions take place, relatively early in pregnancy?

  That wasn't surprising, in and of itself. I think what was more surprising was that more of the justices didn't seem interested in that question.

• Judy Woodruff:

  The — one other thing I definitely want to get the both of you to comment on is to the extent politics was the — is the undercurrent here.

  That was brought up very early in the oral arguments today by Justice Sotomayor. And here is just a part of what she said.

• Sonia Sotomayor, U.S. Supreme Court Associate Justice:

  Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

• Judy Woodruff:

  Marcia, she flat-out said that these cases were brought because the court now has three new conservative justices.

• Marcia Coyle:

  She did point to the fact that the Mississippi legislators who enacted this law said they were doing this because there were new justices on the court.

  She also picked up on what Justice Breyer had said earlier, when he was reading from the Casey decision. And the Casey decision was very clear that the court had to be concerned about its legitimacy when it comes to overturning precedents without justification, that it cannot bow to public pressure, it cannot be because there are new justices on the court.

  So she picked up on that and basically ran with it.

• Judy Woodruff:

  And, Mary, reminding us that, if the court does make the kinds of changes that both you and Marcia say could come from this decision, it will have a profound effect on women across the country.

• Mary Ziegler:

  It will.

  I mean, it will have the most obvious effect on women in the South and Midwest, where we would expect to see not just entire states criminalizing abortion, but, functionally, entire regions, which will make it much harder for people who don't have a lot of money to travel to get an abortion, because that would require either getting an illegal abortion medication and hoping nothing happens to you, or getting on a plane, which, of course, is not possible for people with limited resources in some instances.

  It's going to have effects, I think, on people in other states as well. For example, blue states like California are already expecting to see a surge in abortion patients, because people in places where abortion will be illegal will be seeking those services elsewhere.

• Judy Woodruff:

  Well, it goes without saying…

• Marcia Coyle:

  Judy, can I say one other thing?

• Judy Woodruff:

  Yes.

• Marcia Coyle:

  Although I came out of the arguments feeling that the — a woman's right to an abortion was in serious trouble here, I covered Casey in 1992.

  And I remember, at that time, many of us also thought that Roe was doomed after those arguments, and that Justice Anthony Kennedy was going to be the deciding vote.

  But you never know what's going to happen from the time of the arguments until the justices sit down, vote, and actually start drafting opinions.

• Judy Woodruff:

  And we needed to hear that reminder that we don't know…

• Marcia Coyle:

  We don't know…

• Judy Woodruff:

  … until the decision comes out.

• Mary Ziegler:

  Right.

• Judy Woodruff:

  Marcia Coyle, Mary Ziegler, thank you both. We appreciate it.

• Marcia Coyle:

  Pleasure, Judy.

• Mary Ziegler:

  Thanks for having us.