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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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.

10:47 a.m. ET, December 1, 2021

Sotomayor notes other key court decisions are not "written in the Constitution"

From CNN's Tierney Sneed

Justice Sonia Sotomayor turned to Mississippi’s arguments that Roe v. Wade should be overturned because abortion rights are not explicitly laid out in the text of the Constitution.

Sotomayor noted that several key decisions – such as Marbury v. Madison, which established the judicial review – are not in the Constitution, nor are decisions guaranteeing the right to birth control and same-sex marriage. 

“I fear none of those things are written in the Constitution,” Sotomayor said. “They have all, like Marbury v. Madison, been discerned from the nature of the Constitution.” 

Sotomayor asked why Roe is so “unusual” that it must be overturned.

Mississippi Solicitor General Scott Stewart responded that unlike those other landmarks, abortion involves “the purposeful termination of human life."

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

Here's what is happening outside the court as justices hear oral arguments 

From CNN's Christina Carrega

(Kent Nishimura/Los Angeles Times/Getty Images)
(Kent Nishimura/Los Angeles Times/Getty Images)

Hundreds of people have lined the street outside the Supreme Court as oral arguments have begun on the Mississippi law, with signs that read: “Abortion is Essential Healthcare” and “Equality Begins in the Womb.”

Abby Johnson, a former Planned Parenthood director and star of the movie “Unplanned,” described escorting women to abortion procedure rooms and the emotional toll it takes on patients.

“If you’re a woman who has had an abortion in this crowd, I just want to say I’m sorry … and I am sorry that I was part of that abuse,” Johnson said as she fought to hold back tears. 

(Olivier Douliery/AFP/Getty Images)
(Olivier Douliery/AFP/Getty Images)

On the pro-abortion rights side of the separate rallies outside the court, Jamie Manson, president of Catholics for Choice, said she supports abortion access “because of my faith.”

"Abortion is essential to protecting religious freedom for a government that believes in the separation of church and state. … There’s six justices sitting in this court, I call on them to honor what is best about the Catholic tradition,” Manson said.

10:41 a.m. ET, December 1, 2021

Justice Sotomayor grills Stewart on viability

From CNN's Tierney Sneed

The conservative-leaning Supreme Court is hearing oral arguments in the most important abortion case in 30 years Wednesday as the justices consider Mississippi's request to overturn Roe v. Wade and uphold a state law that bars the procedure 15 weeks after conception.

Justice Sonia Sotomayor zeroed in on Mississippi’s arguments for throwing out the viability line for protecting abortion rights.

She said that Mississippi court fillings didn’t say much about the errors in Casey – the decision that affirmed the viability line – and she grilled Mississippi Solicitor General Scott Stewart on the science he was depending on to say viability is no longer a real line.  

Chief Justice John Roberts jumped in to ask questions suggesting that viability wasn’t at the heart of the cases the court was considering when deciding Roe v. Wade and Casey. 

After Stewart answered his questions, Sotomayor cut back: “May I finish my inquiry?”  

She returned back to asking Stewart about the changes in science that Mississippi says justifies overturning both Casey and Roe.

10:27 a.m. ET, December 1, 2021

The Latin term stare decisis has been mentioned multiple times so far. Here's what it means. 

From CNN's Ariane de Vogue

In legalese, the doctrine the justices will consider on Wednesday is called stare decisis. It derives from the Latin "stare decisis et non quieta movere" meaning, roughly, to stand by things decided and not disturb the calm.

For some, stare decisis is critical because it represents the accumulated wisdom of judges, preserves stability in the law and promotes an evenhanded and consistent development of legal principles.

For others, like Justice Clarence Thomas, it is overrated at times, especially as he wrote in 2019, if it gives the "veneer of respectability" to what he called "demonstrably incorrect precedents."

Wednesday's case will bring the debate to a head as the court considers a federal appeals court decision that struck down the Mississippi law.

The 5th US Court of Appeals — one of the most conservative courts in the country — invalidated the Mississippi law, holding it was in in direct contravention of Roe.

"In an unbroken line dating to Roe v. Wade, the Supreme Court's abortion cases have established (and affirmed and re-affirmed) a woman's right to choose an abortion before viability," the court held.

Mississippi appealed the decision to the Supreme Court. After the justices agreed to take up the dispute, the state attorney general made the big ask: "This Court should overrule Roe," because the decision has proven "hopelessly unworkable." Roe, and another case called Planned Parenthood v. Casey decided in 1992 have "inflicted profound damage," the state said.

"Reliance interests do not support retaining them," the state argued. "And nothing but a full break from those cases can stem the harms they have caused."

Supporters of abortion rights, were quick to respond, emphasizing from the start how the country has come to rely on Roe.

"Two generations — spanning almost five decades — have come to depend on the availability of legal abortion and the right to make this decision has been further cemented as critical to gender equality," Julie Rikelman, a lawyer representing Jackson Women's Health Organization, said in briefs.

And she took aim at the new conservative majority. She said that if the court were to suddenly overrule Roe, after some 50 years, the new court would be turning its back on its institutional legitimacy.

But O. Carter Snead, a Notre Dame Law School professor, believes the court would be repairing its institutional legitimacy by overruling Roe. "The Court's abortion jurisprudence is completely untethered from the Constitution's text, history and tradition," he said in an amicus brief supporting Mississippi. "It has imposed an extreme, incoherent, unworkable, and antidemocratic legal regime for abortion on the nation for several decades."