Supreme Court hears abortion case challenging Roe v. Wade

By Tierney Sneed, Melissa Macaya, Meg Wagner and Melissa Mahtani, CNN

Updated 9:01 PM ET, Wed December 1, 2021
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12:30 p.m. ET, December 1, 2021

Barrett asks about availability of adoption as arguments come to a close

From CNN's Tierney Sneed

(Sarah Silbiger/Pool/Getty Images)
(Sarah Silbiger/Pool/Getty Images)

Justice Amy Coney Barrett returned to a theme she has asked repeatedly about during today's hearing, asking how the growing availability of adoption — via so-called “safe haven” laws — changes the reliance interest.

US Solicitor General Elizabeth Prelogar said that there is “nothing new.” Her question wraps up Prelogar’s argument period and Mississippi Solicitor General Scott Stewart, when stepped up for a brief rebuttal, seized on Barrett’s question.

He said the rise of "safe haven" laws relieve a “huge burden."

Stewart finished his rebuttal without any additional questions from the court.

The hearing ended after the rebuttal, having lasted just under two hours.

4:33 p.m. ET, December 1, 2021

Justice Roberts again tries to steer discussion to 15-week abortion ban

From CNN's Tierney Sneed

Chief Justice John Roberts asked another question suggesting he is looking to find a way to uphold the 15-week abortion ban without reversing Roe v. Wade outright.

He returned the discussion to the reliance interests, and asked US Solicitor General Elizabeth Prelogar, the Biden administration's top lawyer before the Supreme Court,  whether her reliance interest arguments were as strong when considered just against a 15- week ban, rather than a law that prohibition abortion outright.

Prelogar said if that the court were to rule the way Mississippi is asking it to — by reversing the liberty interest or leaving it up the air — states would rush to limit abortions much earlier than 15 weeks into the pregnancy.

“The thing that is at issue before us today is 15 weeks,” Roberts shot back. 

11:50 a.m. ET, December 1, 2021

US solicitor general urges justices to uphold precedent

From CNN's Dan Berman

US Solicitor General Elizabeth Prelogar, the Biden administration's top lawyer before the Supreme Court, is arguing against the court disrupting Roe v. Wade, saying people have relied on the right to an abortion for nearly 50 years.

“Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest. Women who are unable to travel hundreds of miles to gain access to legal abortion will be required to continue with their pregnancies and give birth with profound effects on their bodies, their health, and the course of their lives," Prelogar said.

"If this court renounces the liberty interest recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis," she continued.

“The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society," Prelogar told the justices.

11:47 a.m. ET, December 1, 2021

The future of Roe v. Wade will be defined by Roberts and Kavanaugh

Analysis from CNN's Dan Berman

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett have asked relative softballs of Mississippi Solicitor General Scott Stewart and been tough on Julie Rikelman, a lawyer representing Jackson Women's Health Organization.

Barrett asked about “safe haven laws,” and women’s ability to give up children for adoption.

Thomas, who has lobbied to overturn Roe v. Wade for years, has been direct in asking if there’s a constitutional basis for allowing abortion.

The court’s three liberals are expected to absolutely vote to uphold Roe.

But Chief Justice John Roberts and Justice Brett Kavanaugh may be searching for a middle ground.

Roberts suggested the court could look at Mississippi’s 15-week law as a new viability standard, rather than Roe and Casey, which is over 20 weeks. And Kavanaugh, meanwhile, has asked to confirm that Mississippi isn’t asking the court to outright prohibit abortion, a way to say it’s not overturning Roe while limiting access.

Kavanaugh asked another set of questions suggesting he is inclined to rule with Mississippi and even go as far as reverse Roe.

In broad strokes, he sums up Mississippi’s argument asking the court to interpret the Constitution as neutral on abortion, and to return the issue to state or Congress. He asked Rikelman to respond.

Then he asked a question about stare decisis, ticking off several “consequential” decisions — including on school segregation, voting rights, and business regulations — where the court overturned precedent.

If the court had listened to the arguments that it should adhere to precedent in those cases, “the country would be a much different place,” Kavanaugh said.

Justice Sonia Sotomayor shot back at Kavanaugh's question that cited several court decisions that overturned precedent. Most of those cases, Sotomayor said, were “us recognizing and overturning state control over issues that we said belong to individuals.”

Breyer also took issue with the list of cases Kavanaugh cited.

CNN's Tierney Sneed contributed reporting to this post.

11:34 a.m. ET, December 1, 2021

Justice Alito draws a line on viability of fetus

From CNN's Tierney Sneed

Erin Schaff/Pool/AFP/Getty Images
Erin Schaff/Pool/AFP/Getty Images

Justice Samuel Alito dug in on whether viability is an appropriate line for the court to have drawn.

“The fetus has an interest in having a life,” Alito said, and that doesn’t change between before and after viability.

“What is the secular philosophical argument for saying this is the appropriate line?” Alito asked.

Julie Rikelman, a lawyer representing Jackson Women's Health Organization, the only licensed abortion clinic in the state, said that the line is “objectively verifiable” and doesn’t require the court to resolve the philosophical questions.

11:24 a.m. ET, December 1, 2021

Chief Justice John Roberts suggests a 15-week limit could be OK with SCOTUS

From CNN's Tierney Sneed

(Alex Wong/Getty Images)
(Alex Wong/Getty Images)

Chief Justice John Roberts, a key swing vote, had questions specifically about Mississippi’s ban, asking Julie Rikelman, a lawyer representing Jackson Women's Health Organization, the only licensed abortion clinic in the state, why 15 weeks is not enough time for a woman to obtain abortion. 

Rikelman said that a “reasonable possibility standard” would be “unworkable” for the courts and that without the viability line, states will push that point earlier and earlier in the pregnancy. 

She also pushed back on a claim by Roberts that United States stands out internationally for how late into the pregnancy it allows abortion. She said that many countries – including Canada and several countries in Europe – permit abortion up until viability. She also noted that other countries have fewer regulatory barriers to the procedure.

So, if the court moved the line substantially backwards, it may need to reconsider the rules around regulation, she said.

Justice Neil Gorsuch asked Rikelman about an alternative that Mississippi put forward if the court did not reverse Roe v. Wade.

The state argued that they could also apply an undue burden standard on bans on abortion before viability. That is the standard that applies to abortion regulations that make the procedure harder to the access. Rikelman said that idea would not be "workable."

11:15 a.m. ET, December 1, 2021

Kavanaugh signals he may be open to limiting abortion

From CNN's Tierney Sneed

(Jabin Botsford/Pool/Getty Images)
(Jabin Botsford/Pool/Getty Images)

Justice Brett Kavanaugh asked a question that seems aimed at the arguments made by abortion rights advocates that a decision overturning Roe v. Wade would be a step towards the Supreme Court eventually issuing a decision that would outlaw abortion nationwide. 

Kavanaugh asked Mississippi Solicitor General Scott Stewart to confirm that his state is not making an argument that the court should prohibit abortion.

Mississippi is arguing that the Constitution is silent or neutral on the abortion question. Kavanaugh asked Stewart to confirm, which he did. 

“We’re saying it's left to the people, your honor,” Stewart said. 

Kavanaugh suggested that a majority of states – or at least many states – would maintain abortion access.

“I don’t think anybody would be moving to change their laws in a more restrictive direction,” Stewart said.

More background: Kavanaugh was confirmed after a contentious process in 2018, which included assuring GOP Sen. Susan Collins of Maine that he wouldn’t overturn Roe.

But his questions signal that he is open to voting in favor of a decision that would drastically limit Roe, if not reverse it outright.

10:52 a.m. ET, December 1, 2021

Sotomayor to Mississippi solicitor general: "How is your interest anything but a religious view?"

From CNN's Tierney Sneed

Justice Sonia Sotomayor had a pointed question for Mississippi Solicitor General Scott Stewart about what’s motivating the state's abortion restrictions. “How is your interest anything but a religious view?” 

“The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?” she continued.

She went on to also ask Stewart: “When does the life of the women and putting her at risk, enter the calculus?” 

Justice Samuel Alito then jumped in with a question for Stewart, noting that secular bioethicists also consider the question of when life begins.

10:48 a.m. ET, December 1, 2021

Chief Justice Roberts: We didn't ask about overruling Roe and Casey

From CNN's Dan Berman

Chief Justice John Roberts noted that Mississippi didn’t originally ask to overturn Roe v. Wade and Casey — it only asked to review the viability line for the state’s 15-week law but expanded its argument later on.

One thing that could influence the court is that its original approval to take up the case was more limited than it has become.

Roberts could likely be in the majority of any ultimate decision, and as chief justice, he can assign the opinion to himself, so he’s being watched for any sign of stopping short of overturning Roe altogether.