During oral arguments on Wednesday over a Mississippi abortion law that could overturn Roe v. Wade, Justice Sonia Sotomayor asks about the Supreme Court’s legitimacy if the decision to reverse the right to an abortion is seen as a political act.
SONIA SOTOMAYOR: What hasn't been at issue in the last 30 years is the line that Casey drew of viability. There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right of-- to control her own body has been clearly set forth since Casey, and never challenged. You want us to reject that line of viability and adopt something different.
15 justices over 50 years have-- or I should say 30, since Casey-- have reaffirmed that basic viability line. Four have said no, two of them members of this court, but 15 justices have said yes, of varying political backgrounds. Now, the sponsors of this bill, the House bill in Mississippi, said we're doing it because we have new justices. The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we're doing it because we have new justices on the Supreme Court.
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. It's what Casey talked about when it talked about watershed decisions. Some of them, Brown versus Board of Education it mentioned, and this one have such an entrenched set of expectations in our society that this is what the court decided, this is what we will follow, that we won't be able to survive if people believe that everything, including New York versus Sullivan-- I could name any other set of rights, including the Second Amendment, by the way-- there are many political people who believe the court erred in seeing this as a personal right, as opposed to a militia right. If people actually believe that it's all political, how will we survive? How will the court survive?