Supreme Court abortion case: Sotomayor grills Mississippi on ‘stench’ of politics in landmark hearing

The US Supreme Court heard oral arguments in a landmark abortion case out of Mississippi, which seeks to overturn the high court’s landmark Roe v Wade ruling which cemented abortion rights in the country in 1973.

Conservative justices signalled their likelihood to uphold the Mississippi law at the centre of the case, which bans abortions after 15 weeks. The Supreme Court’s ruling isn’t expected until June 2022.

Overturning Roe would immediately or quickly ban most abortions in more than 20 states, forcing women who can afford it to travel hundreds of miles to safely access care.

Members of Congress joined hundreds of abortion rights activists and anti-abortion demonstrators who braved a chilly Washington DC morning to rally outside the court on Wednesday. US Capitol Police arrested at least 33 people for obstructing traffic near the court.

In her opening remarks, Justice Sonia Sotomayor grilled Mississippi solicitor general Scott Stewart about the overt politics of the abortion case before them, despite 50 years of precedent.

She added: “Now the sponsors of this bill ... are saying, ‘We’re doing this 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?”

“If people believe it’s all political, how will we survive? How will the court survive?” she said.

Justices repeatedly returned to the question of fetal viability outside the womb, at around 24 weeks of pregnancy and a barrier against prohibitive laws established under Roe precedent and later affirmed in Planned Parenthood v Casey.

After nearly two hours of arguments, the Supreme Court’s six conservative justices appeared willing to undermine such precedents.

Follow for live updates as they happened

Read More

‘It is a terrifying time’: Legal right to abortion in US faces direct challenge at Supreme Court

What is Roe v Wade and did it get overturned?

Key Points

• Supreme Court appears likely to uphold Mississippi abortion law in landmark case

• What’s at stake for abortion rights

• Members of Congress urge passage of reproductive healthcare law

• Abortion advocates rally at Supreme Court

20:50 , Alex Woodward

Thanks for following today’s live coverage. Stay tuned with The Independent.

If Roe falls, ‘the people who need the access the most would be losing it’ advocates say

20:43 , Alex Woodward

Shannon Brewer, director of Jackson Women’s Health Center, which is at the centre of the Mississippi case in front of the US Supreme Court, said a potential reversal of Roe would devastate the largely low-income patients in the state, who would be forced to travel thousands of miles for abortion care.

“I’m sure some women would go somewhere else but the women we see barely make it here, and they live in the state,” she told reporters in a briefing following today’s arguments.. “They can’t afford to jump on an airplane and fly somewhere. They can’t afford to spend two or three thousand dollars and get a hotel out of state.”

She added: “In Mississippi, where healthcare is already the worst, our education is already one of the worst, you can’t take stuff away from people and expect the situation to be better.”

Nancy Northrup, CEO Center for Reproductive Rights, which is leading the litigation, said if Roe falls, “the people who need the access the most would be losing it.”

“The US would be very out of step globally toward the trend of liberalising abortion,” she said.

“You cannot expect a good outcome from this,” Ms Brewer said, “When it gets worse, who’s going to raise their hand and take blame for it then?”

Can Congress preserve abortion rights?

19:46 , Alex Woodward

In September, the Democratically controlled US House of Representatives passed the Women’s Health Protection Act, which aims to protect the right to choose to continue or end a pregnancy, and it would enshrine into law health providers’ ability to offer abortion services prior to fetal viability without state-level barriers, like bans that seek to prohibit most abortions, or requirements for waiting periods or hospital admitting privileges for providers.

President Joe Biden’s administration “strongly supports” the bill and its passage, which followed the Supreme Court allowing a near-total ban on abortions in Texas from going into effect.

The administration has supported congressional efforts to codify the precedent established by Roe v Wade, and members of Congress have repeatedly called on lawmakers to pass such legislation.

“In the wake of Texas’ unprecedented attack, it has never been more important to codify this constitutional right and to strengthen health care access for all women, regardless of where they live,” a White House statement said in September.

The statement continued: “The constitutional rights of women are essential to the health, safety, and progress of our nation. Our daughters and granddaughters deserve the same rights that their mothers and grandmothers fought for and won –and that a clear majority of the American people support. We will not allow this country to go backwards on women’s equality.”

But a Senate version of the bill is likely to languish in that chamber – the bill would likely face yet another Republican filibuster, with legislation requiring 60 votes to advance to the floor for a vote. The Senate is currently evenly divided.

Biden: ‘I support Roe v Wade'

18:56 , Alex Woodward

Joe Biden was asked by a reporter during a briefing on Wednesday whether the administration intends to codify in law the abortion precedent established by Roe v Wade following a Supreme Court hearing that signals dramatic changes to abortion access in the US.

“First of all ... I didn’t see any of the debate today,” he said.

He added: “I support Roe v Wade, I think it’s a rational position to take and I continue to support that right.”

What do most Americans think of abortion access?

18:46 , Alex Woodward

Public opinion on abortion care is largely in direct contrast to stringent laws that ban most abortions.

A majority of Americans (61 per cent) believe that abortion should be legal in all or most cases, according to Pew Research Center. Another Pew survey from 2019 found that 59 per cent of Americans say they are more concerned about states making it too difficult to access abortion care.

But in seven states that have sought near-total bans on abortion, slim majorities there believe abortion “should be illegal in all or most cases,” according to Pew.

Capitol Police make arrests near Supreme Court

18:28 , Alex Woodward

US Capitol Police arrested 33 people for “Crowding, Obstructing or Incommoding” along Constitution Avenue during abortion rights and anti-abortion demonstrations near the Supreme Court, police said in a statement on Wednesday.

“This does not affect the lawful demonstrators who are in front of the US Supreme Court,” the statement said.

Police said they gave “roughly 40 demonstrators” a series of three warnings before making arrests.

Breaking: Supreme Court appears likely to uphold Mississippi abortion law after arguments in landmark case

18:10 , Alex Woodward

The US Supreme Court appears poised to uphold a Mississippi law that bans abortions after 15 weeks of becoming pregnant.

The nine justices presided over roughly two hours of arguments in a major case that could determine the fate of abortion access for millions of Americans, marking the biggest direct challenge to the landmark ruling in Roe v Wade that enshrined the constitutional right to such medical care.

Conservative justices now hold a majority on the nation’s high court after former President Donald Trump appointed three justices. A decision in the case is expected by June 2022.

That potential outcome would contradict the 1973 decision in Roe that established a constitutional right to an abortion and prohibited states from banning the procedure before fetal viability at roughly 23 weeks.

Overturning Roe would immediately or quickly ban all abortion in more than 20 states, forcing women who can afford it to travel hundreds of miles to safely access an abortion.

Supreme Court appears likely to uphold Mississippi abortion law in major case

Overturning Roe would force women to travel more than 100 miles for an abortion

18:08 , Alex Woodward

The average American would have to travel roughly 125 miles to reach the nearest abortion provider, according to an analysis from the Myers Abortion Facility database.

More than 20 states would immediately or quickly ban most abortions, if Roe v Wade precedent is overturned, with so-called “trigger” laws activating in several states that would ban the procedure.

Such disparities are far greater in southern states; the average one-way driving distance to a provider would surge to 575 miles for people seeking care in Florida, and 666 miles in Louisiana, according to the analysis.

Amy Coney Barrett repeatedly discussed ‘safe haven laws’ as alternatives to abortion

17:24 , Alex Woodward

Justice Amy Coney Barrett, the most recent addition and third Trump appointee to join the court, questioned at several points whether “safe haven” laws – which allow parents to surrender infants without criminal prosecution – resolve the “burdens of parenting” in both Roe and Casey.

In her questioning to Julie Rikelman with the Center for Reproductive Rights, she said her filings “focus on the ways in which the forced parenting, forced motherhood would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy.”

“Why don’t the safe haven laws take care of that problem?” she said.

Rikelman said that the idea that children could be put up for adoption was also possible during Roe.

Pregnancy “imposes unique physical demands and risk on women and in fact has impact on all of their lives and their ability to care for other children, other family members on their ability to work,” she added.

She stressed that in Mississippi, at the centre of the case, “those risks are alarmingly high.”

“It’s 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion, and those risks are disproportionately threatening the lives of women of colour,” she said.

Outside the court, some optimism and vitriol

17:15 , Alex Woodward

Demonstrations outside the court continue as today’s hearing comes to a close, reports The Independent’s John Bowden.

“I’m here to say one thing: F*** abortion stigma,” said one activist from Florida.

Other groups outside the court include national abortion advocacy, labour and civil rights groups, as well as right-wing protesters drowning out rally speakers with demonstrations of their own.

“This is the exact reason you women shouldn’t have power” one person said into a mic.

Lexi Hall, an activist with Created Equal, said she is “not particularly optimistic” about Roe being overturned in this case. “We’re focused on making abortion unthinkable” with pictures and images,” she said.

Jenny Ma, senior litigator with the Center for Reproductive Rights, said she is “feeling good” about their chances after oral arguments ended.

“I’m optimistic as an attorney and as someone who believes in the rule of law,” she said.

Several lawmakers joined the rally, including US Rep Cori Bush, among members of Congress who have publicly shared their abortion experiences.

“Justice ... that’s what this building is supposed to represent. Notice I said supposed to,” she said. “There is nothing just about a far-right Supreme Court determined to oppress us.”

Arguments have ended. So what next?

17:00 , Alex Woodward

Arguments have ended in Dobbs v Jackson Women’s Health, and the justices will now mull their votes in private conference. A ruling won’t be determined immediately, and a decision could emerge in weeks or months after it is written. The decision isn’t expected until June or July 2022.

Anti-abortion and abortion rights activists rally outside the court

16:42 , Alex Woodward

The Independent’s John Bowden is outside the Supreme Court as justices hear arguments in a case that could determine the fate of abortion rights and access in more than a dozen states:

Hundreds of people are gathered, with anti-abortion and abortion rights demonstrators mingling all together, with Westboro-esque protesters yelling “America must repent” less than 10 feet away screaming into a speaker to drown them out, he reports.

The case before the court pose the “greatest threat to Roe we’ve seen in decades,” said Senate Majority Leader Chuck Schumer, addressing the rally.

“The right has packed our courts with extremist judges,” he said. “We will not be intimidated ... Abortion is a right. We will not let right-wing ideology decide what we do.”

One protester screamed back “you’re going to die, Chuck, and meet a righteous god.”

US solicitor general warns Supreme Court of ‘unprecedented revocation of rights'

16:34 , Alex Woodward

US solicitor general Elizabeth Prelogar with the Justice Department called attempts to undermine abortion access an “unprecedented revocation of rights.”

“The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate full and equally in society,” she said.

Justice Thomas, again, tried to ask where specifically abortion is protected in the constitution, drawing contrasts to Second Amendment and Fourth Amendment rights.

“Because it’s written, it’s there,” he said. “What specifically is the right here, that we’re talking about?”

“It’s the right of a women prior to viability to decide whether to continue a pregnancy,” the solicitor general said.

Pelosi calls Mississippi law ‘brazenly unconstitutional’

16:22 , David Taintor

House Speaker Nancy Pelosi has called the Mississippi law in question “brazenly unconstitutional” as she pledged to continue to fight for women’s reproductive health care access. Read her full statement below:

“As the Supreme Court hears arguments in the case of Dobbs v. Jackson Women’s Health Organization, it has the opportunity and responsibility to honor the Constitution, the law and this basic truth: every woman has the constitutional right to basic reproductive health care. “Mississippi’s radical abortion ban, part of a nationwide assault against women’s freedoms targeting in particular women of color and women from low-income communities, is brazenly unconstitutional and designed to destroy Roe v. Wade. Yet again, Republicans are trying to control a woman’s most personal decisions about her body and her family and are trying to criminalize health care professionals for providing reproductive care. The constitutional right to an abortion has been repeatedly affirmed, and any failure to fully strike down the Mississippi ban would seriously erode the legitimacy of the Court, as the Court itself warned in its ruling in Casey, and question its commitment to the rule of law itself. “The House is committed to defending women’s health freedoms and to enshrining into law our House-passed Women’s Health Protection Act, led by Congresswoman Judy Chu, to protect reproductive health care for all women across America.”

Justice Thomas asks why the Constitution protects abortion rights

16:22 , Alex Woodward

Justice Clarence Thomas asked where the Constitution protects abortion rights.

“Is it privacy? Autonomy? What would it be?” he said.

Julie Rikelman with the Center for Reproductive Rights said it is enshrined in the 14th Amendment, in which a state “can’t deny someone liberty without the due process of law.”

“Allowing a state to take control of a woman’s body … is a fundamental deprivation of her liberty,” she said.

The “workable line” that needs to be drawn from such protections returns to the question of viability, she said.

Breyer warns about dangers of overturning ‘watershed’ case precedent

16:17 , Alex Woodward

Justice Breyer, warning about the danger of the appearance of politics in such cases, turned debate back to the “stare decisis” question.

“The problem with a super case like this ... is people are ready to say, ‘You’re just politicians.’ That’s what kills us as an institution,” he said. “You better be sure normal stare decisis considerations are there in spades.”

Justices debate ‘viability’, suggesting Roe could be preserved while allowing states to impose their own bans

16:13 , Alex Woodward

Chief Justice John Roberts asked Julie Rikelman with the Center for Reproductive Rights why 15 weeks – which is nine weeks before “fetal viability” outside the womb – is “not enough time”.

“If you think that the issue is one of choice ... viability, it seems to me, doesn’t have anything to do with choice,” he said. “If it really is an issue about choice, why is 15 weeks not enough time?”

His line of questioning suggests that he would be open to preserving Roe while also opening the door for states to introduce their own abortion bans at different stages of pregnancy.

He then compared the so-called viability line to China and North Korea.

Rikelman corrected Justice Roberts and agued that Canada, the UK and parts of Europe permit elective abortion up until viability while also facing fewer barriers to access.

Justice Samuel Alito asked several questions about viability, suggesting the line is “arbitrary.”

“If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed,” he said. “The fetus has an interest in having a life, and that doesn’t change from the point before viability and after viability.”

How will the court treat precedent and ‘stare decisis’?

15:43 , Alex Woodward

Justices keep returning to discussions of precedent and the court’s “stare decisis”, which Justice Elena Kagan said is to “prevent people from thinking that this court is a political institution that will go back and forth” depending on who “yells the loudest”.

For the court to overturn precedent, “usually there has to be ... strong justification,” she said.

Sotomayor: ‘When does the right of a woman and putting her at risk enter the calculus?'

15:39 , Alex Woodward

Justice Sotomayor, probing Mississippi, asked “when does the right of a woman and putting her at risk enter the calculus” when determining law.

“Right now, forcing women who are poor, and that’s 75 per cent of the population, and much higher percentage of those women in Mississippi, who elect abortions before viability – they are put at much greater risk of medical complications,” she said.

She added: “And now the state is saying to these women, ‘we can choose not only to physically complicate your existence … make you poorer by the choice, because we believe...,’ what?”

Sotomayor grills Mississippi on ‘stench’ of politics in case

15:27 , Alex Woodward

In her opening remarks, Justice Sonia Sotomayor grilled Mississippi solicitor general Scott Stewart about the overt politics of the abortion case before them, despite more than a dozen justices over 30 years affirming Roe and Casey.

She added: “Now the sponsors of this bill ... are saying, ‘We’re doing this 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?”

“If people believe it’s all political, how will we survive? How will the court survive?” she said.

Clarence Thomas asks first question as hearing is underway

15:21 , Alex Woodward

As arguments begin, Justice Clarence Thomas posed the first question, noting that abortion cases before the Supreme Court have largely focused on “privacy and autonomy” rather than abortion specifically.

“Does it make a difference that we focus on privacy and autonomy, or more specifically on abortion?” he asked.

He asked that, should the court overturn Roe, what other standard is there other than the “undue burden standard” established in 1997 by Planned Parenthood v Casey, a separate decision that bolstered the right to an abortion.

Dozens of doctors and health workers issue letter to protect abortion rights

15:07 , Alex Woodward

A group of more than 250 doctors and health workers have demanded the US Supreme Court protect abortion rights and uphold the landmark precedent set with Roe v Wade, which effectively enshrined the constitutional right to abortion and struck down anti-abortion laws across the US.

The letter from Committee to Protect Health Care – issued as the nation’s high court prepared to hear arguments in one of the most important abortion rights cases in decades – stressed that abortion access remains “an essential element of medical care.”

“Patients may need an abortion because of pregnancy complications that endanger their health,” the letter reads. “Forcing people with chronic illnesses, following a miscarriage, or after a serious medical condition diagnosis to carry a pregnancy to term against their will could have life-threatening consequences.”

The letter strikes at state laws that “prevent doctors and health professionals from helping our patients who are seeking our counsel, regardless of the reason they may seek an abortion, be it that they have a pregnancy complication, a health or mental health condition, or that they just do not want to be pregnant now,” the letter says.

Congresswoman Jayapal: ‘Do not criminalise the choices we make about our own bodies and our future'

14:26 , Alex Woodward

US Rep Pramila Jayapal, chair of the House progressive caucus, and one of several members of Congress who have publicly discussed their abortion experience, joined abortion rights advocates outside the Supreme Court on Wednesday.

“For me terminating my pregnancy was not an easy choice. But it was my choice,” she said.

She urged the Senate to amend the filibuster to allow passage of the Women’s Health Protection Act, which would prohibit states from interfering with reproductive health services.

Restrictive abortion laws are “not about healthcare,” she said. “This is about controlling our bodies. It’s all about control.”

“Do not criminalise me and millions of women like me across the country,” she said. “Do not criminalise those that help us. … Do not criminalise the choices we make about our own bodies and our future.”

Members of Congress rally for abortion rights, demand lawmakers codify Roe precedent into law

14:20 , Alex Woodward

US Reps Dianne DeGette and Barbara Lee joined abortion rights advocates rallying outside the Supreme Court on Wednesday to slam “extremist” anti-abortion laws in states and urge lawmakers to preserve the constitutional right to abortion care through established law.

“They’re not going to stop anyone from having sex. Abortion is an essential part of healthcare,” Rep DeGette said. “Keep abortion decisions out of the hands of politicians. Keep abortion decisions in the hands of American citizens.”

Lawmakers have introduced the Women’s Health Protection Act, which would prohibit states from interfering with reproductive health services.

“I am one in one-in-four women who have had an abortion,” Rep Lee said.

“I survived. Many women did not survive, especially Black women,” she said. “We cannot and will not go back to those days. ... Every person should have the freedom to decide how to control their bodies and their lives.”

Abortion advocates rally outside the Supreme Court: ‘Keep these bans off our bodies’

14:13 , Alex Woodward

Abortion advocates are holding a rally outside the US Supreme Court to support abortion providers and the right to abortion care, with the high court set to hear arguments in a Mississippi case that blocks almost all abortions after 15 weeks of pregnancy.

Shannon Brewer, clinic director Jackson Women’s Health, the only remaining abortion clinic in Mississippi, was emotional as she addressed the crowd. The clinic is at the centre of the Mississippi case, Dobbs v Jackson Women’s Health Organization.

“Now it’s our turn to fight for our children,” she said.

Amy Hagstrom Miller, CEO of Whole Woman’s Health, which operates four abortion clinics in Texas, said 2021 “has been an unprecedented ambush on abortion rights.” The clinic also is at the centre of another suit at the Supreme Court over a draconian anti-abortion law in Texas.

“Meaningful access to abortion care in the US depends on independent abortion providers,” she said.

Texas is also among 12 states with so-called “trigger laws” that would ban abortion should Roe be overturned, and is one of 26 states that is likely to ban abortion quickly should that power return to states.

“Not on our watch. Keep these bans off our bodies,” Hagstrom Miller said.

“Together we will reclaim the power and compassion of abortion care,” she said. “Never forget we are the majority and we stand in the light.”

Abortion rights at stake

14:01 , David Taintor

My colleague Maya Oppenheim takes a look at what’s at stake in today’s oral arguments:

Tarah Demant, Amnesty International USA’s Interim Senior Director of Programmes, told The Independent maternal deaths will greatly rise if Roe v Wade is overturned due to women being forced to resort to dangerous backstreet abortions.

She said: “We anticipate a further erosion of the right to abortion. This will have an enormous impact on the rights and lives of many. This means a huge uptick in unsafe abortions and a huge uptick in women being forced to carry unwanted pregnancies to term.

“Ultimately what this means is not just a total roll back of abortion for a huge population of the US but a health crisis.”

Read her full report here:

Legal right to abortion in US faces direct challenge at Supreme Court

Oral arguments begin at 10am ET

13:23 , David Taintor

Good morning and welcome to The Independent’s live blog. Oral arguments in the Mississippi case are set to begin at 10am ET.