Counterrevolution in the United States

On Wednesday, the Supreme Court indicated it would uphold a restrictive Mississippi law that bans abortion starting at just 15 weeks of pregnancy. The case threatens to overturn the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide. We feature excerpts from the two hours of oral arguments and speak with lawyer and bioethics professor Katie Watson. “The statute itself simply says abortion after 15 weeks is ‘barbaric.’ What’s barbaric, in my opinion, is forced childbearing,” says Watson. “There’s no explanation why, at any point, the potential interest of the fetus or the state’s interest in that fetus … would supersede the actual person in which it lives.”

AMY GOODMAN: This is Democracy Now!, Democracynow.org, the War and Peace Report. I’m Amy Goodman joined by Democracy Now! co-host Nermeen Shaikh. Hi, Nermeen.

NERMEEN SHAIKH: Hi, Amy. Welcome to all of our listeners and viewers across the country and around the world.

AMY GOODMAN: In the biggest challenge to abortion rights in half a century, the Supreme Court’s conservative majority Wednesday indicated they support upholding a restrictive Mississippi abortion law that bans abortion starting at 15 weeks of pregnancy. The ruling could undermine and possibly overturn the landmark 1973 Roe v. Wade ruling legalizing abortion nationwide. The court with its 6-3 conservative majority heard about two hours of oral arguments. Justice Amy Coney Barrett suggested while questioning Julie Rikelman, the lawyer representing Jackson Women’s Health Organization, that so-called safe haven laws that allow mothers to relinquish parental rights mean they cannot be forced into motherhood.

JUSTICE AMY CONEY BARRETT: You and many of your amici focus on the ways in which forced parenting, forced motherhood would hinder women’s access to the workplace and to equal opportunities. It is 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?

AMY GOODMAN: Meanwhile, Justice Brett Kavanaugh raised the issue of legal precedents, which he also addressed during his 2018 confirmation hearing when he was asked about his views on the Supreme Court’s abortion rulings. This is Kavanaugh back in 2018, suggesting Roe v. Wade is settled law and unlikely to be overturned.

JUDGE BRETT KAVANAUGH: One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly reaffirmed in Planned Parenthood v. Casey in 1992.

AMY GOODMAN: That’s Judge Kavanaugh in 2018 at his confirmation hearing referring to the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey, which reaffirmed Roe. His comments were cited by Republican Senator Susan Collins when she provided the pivotal vote to confirm Kavanaugh to the high court even though she is pro-choice. But during Wednesday’s oral arguments, Justice Kavanaugh made what seemed to be a much different argument about precedent.

JUSTICE BRETT KAVANAUGH: If you think about some of the most important cases, the most consequential cases in this court’s history, there is a string of them where the cases overruled precedent. Brown v. Board outlawed separate but equal. Baker v. Carr which set the stage for one person, one vote. West Coast Hotel which recognized the state’s authority to regulate business. Miranda v. Arizona which required police to give warnings about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v. Texas which said that the state may not prohibit same-sex conduct. Mapp v. Ohio which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Gideon v. Wainwright which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage.

AMY GOODMAN: That’s Justice Kavanaugh yesterday. Meanwhile, the high court’s three liberal justices said reversing Roe and Casey would damage the court’s legitimacy. This is Justice Sonia Sotomayor.

JUSTICE SONIA SOTOMAYOR: There has been some difference of opinion with respect to undue burden but the right of a woman to choose, the right to control her own body has been clearly set since Casey and never challenged. You want us to reject that line of viability and adopt something different. Fifteen justices over 50 years—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 are 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 are 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?

AMY GOODMAN: That is Justice Sonia Sotomayor. If Roe v. Wade is overturned, almost half of states have so-called trigger laws already in place that will rapidly make abortion illegal. For more, we are joined by Katie Watson, bioethics professor at Northwestern University Feinberg School of Medicine. She’s a lawyer and author of the book Scarlet A: The Ethics, Law and Politics of Ordinary Abortion. Professor Watson, welcome to Democracy Now! There is so much to unpack here. If you can talk about what you found most significant and alarming about what took place in the U.S. Supreme Court on Wednesday?

KATIE WATSON: Most alarming and most saddening is that the court is on the brink of making a grave error that will put it on the wrong side of history. I say that for two reasons. If the court is to gut or overturn Roe v. Wade, that will hurt all American women, not just those seeking abortion. I think that is a point that we haven’t quite captured. Second, it will bankrupt the moral authority of the institution itself, the institutional legitimacy concerns you heard in those recordings. As Justice Breyer said, the court doesn’t have an army or a purse; it has its credibility. And it is on the brink of losing it.

NERMEEN SHAIKH: Professor Watson, could you explain what the origins of this case are, Dobbs v. Jackson Women’s Health Organization? What is the history of the case?

KATIE WATSON: Thank you, Nermeen. Mississippi has a long history of trying to restrict abortion rights. In this statute, it banned abortion after 15 weeks. What is so striking about this statute is Mississippi didn’t even bother to come up with a fake science rationale for why 15 weeks was better than the viability standard. The statute itself simply says abortion after 15 weeks is barbaric. What is barbaric, in my opinion, is forced childbearing. So they randomly have picked a lower number and moved forward with that. In the almost 50-year history of Roe, lower courts at the district and appellate level just strike laws like that because they are so obviously contradictory to Roe and Casey, the 1992 case that affirmed the core holding of Roe.

In this situation, the Supreme Court granted cert, certiorari, that they will hear the case, which was shocking. Usually they would just rubber-stamp it. And on the question, do all pre-viability bans on quote “elective abortion” violate the Constitution, they don’t accept that question or say they will hear arguments on that question unless they think they have five members who think the answer is yes. Now, Justice Roberts called out the solicitor general of Mississippi, and I think appropriately so, to say “we granted cert on this question about the number, could states ban abortion before viability. Your brief primarily argues we should overturn Roe v. Wade, which is not what we granted cert on.”

So you can see this is really a false conversation, a Trojan horse, if you will, these number conversations about gestational age, for overturning Roe because opponents of legal abortion and women’s personhood know that the viability standard is central to Roe. It is the only principled gestational age standard there is. So if they can get movement on that, they have disassembled Roe.

NERMEEN SHAIKH: Professor Watson, explain what the viability standard is and its origins in abortion law in the U.S., and also trigger laws, where they exist and what that would mean.

KATIE WATSON: The viability standard, there are two pieces of it that I think are often confusing to people so I am delighted to explain it. The first part is that the Roe court did not decide that a fetus is a person or has any protection after viability. It said that there is no possible way that the framers in the 16 uses of the word “person” in the Constitution could have been thinking about embryos or fetuses. What is not in dispute is that women are people under the Constitution. So it said that women have a constitutional right to continue or end a pregnancy as they see fit until this medical moment called viability. The court used general phrasing to explain what that is. So think of cruel and unusual punishment or other constitutional standards that use words instead of specifics and numbers. They said that viability was a reasonable chance at a meaningful life. And they left it to the medical profession to decide what that was and when that happened.

But in the Roe opinion, they said today that happens generally at 28 weeks and often as early as 24 weeks. So people have this idea that there has just been—and there has been progress in NICU medicine for sure, but not the astronomical progress that it is sometimes painted as. Because today at about 24 weeks, if a person who is continuing a pregnancy goes into premature labor, there’s somewhere around the ballpark of a 50% chance of survival of that fetus, maybe a little higher these days, and often with significant or moderate disability. So the medical profession has pegged it there.

There’s no problem with the viability standard because it moves with medicine. The significant thing about the viability standard is that it is the only “principled standard,” to use the term of Julie Rikelman who argued the case, and I’ve argued this in my book, because it is the only gestational or developmental standard that accounts for the pregnant person. It is the only one that acknowledges the person in whom that embryo or fetus lives and is dependent on. So what the court did in Roe very wisely is to say essentially the biological goal of pregnancy is to deliver an independent person, a baby, and so at the point of development when at least theoretically that fetus could live separately with medical support from the person in whom it lives, that is when the state can assert an interest in potential life.

AMY GOODMAN: I want to go to the exchange from Wednesday’s oral arguments between Supreme Court Justice John Roberts and Julie Rikelman, a litigation director of Center for Reproductive Rights.

JUSTICE JOHN ROBERTS: 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, an 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?

JULIE RIKELMAN: For a few reasons, Your Honor. First, the state has conceded that some women will not be able to obtain an abortion before 15 weeks and this law will bar them from doing so. And a reasonable possibility standard would be completely unworkable for the courts. It would be both less principled and less workable than viability. Some of the reasons are without viability, there will be no stopping point. States will rush to ban abortion at virtually any point of pregnancy. Mississippi itself has a six-week ban that it is defending with very similar arguments as it’s using to defend the 15-week ban. And there are states that have bans—

JUSTICE JOHN ROBERTS: Well, I know, but I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability. It is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea. I don’t think we have to be in favor of looking to international law to set our constitutional standards to be concerned, if those are your—share that particular time period.

AMY GOODMAN: That is Chief Justice John Roberts questioning Julie Rikelman. If you can talk about the fact that this is the Roberts court and the particular significance of him raising this? Then we will go to Kavanaugh on so-called neutrality of the court.

KATIE WATSON: What Justice Roberts is missing is several things. The first is, I hate to just start with simple math, but 15 weeks is nine weeks less than 24. Recall that the way pregnancy is dated, the zero to two weeks you’re not really pregnant, since most people ovulate in the middle of the month. So that is 40% less time to discover your pregnancy and then take the action necessary if you choose to end your pregnancy. So it is not insignificant.

The other piece is conceptual. As I explained earlier, there is a principled basis for the viability line. There is no principled basis for 15 weeks. That should be very important to Justice Roberts although it sounds like it is not. The true weakness of the Roe case, honestly, is its assertion of the state interest in potential life at viability with absolutely no analysis or justification. What would justify the state’s interest in an entity that is not a person? An interest in more taxpayers? An interest in creating more soldiers? There is no explanation why at any point the potential interest of a fetus or the state’s interest in that fetus—Roe gave fetuses no rights—would supersede the actual person in whom it lives.

So John Roberts is wrong about the math. He is wrong about the principle. He is also wrong about international law in his comparison. He cited it incorrectly as Rikelman pointed out. But the even more important comparison is context. For example in Europe where they have national healthcare and people don’t have to pay for their abortions or pay for their contraception in the same way we do here, and a different system of sex education where people have awareness of pregnancy in a different way than they do perhaps in Mississippi schools, that you can’t compare the two in terms of abortion rights, how early people find out and their quicker access to healthcare. Those who are concerned about later abortion more than early abortion, the best policy measure they could support is to have Medicaid coverage in America, repeal the Hyde Amendment and allow poor women—low-income women are 75% of abortion patients—make it easier for them to get to the doctor faster.

AMY GOODMAN: Kavanaugh. Let’s go to Justice Brett Kavanaugh and his line of questions about neutrality to Mississippi Solicitor General Scott Stewart.

JUSTICE BRETT KAVANAUGH: You’re arguing that the Constitution is silent and therefore neutral on the question of abortion, in other words, that the Constitutions is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process. Is that accurate?

SCOTT STEWART: Right, we are saying it is left to the people, Your Honor.

JUSTICE BRETT KAVANAUGH: So if you were to prevail, the states, majority of states or states still could and presumably would continue to freely allow abortion. Many states, some states would be able to do that even if you prevail under your view. Is that correct?

SCOTT STEWART: That is consistent with our view, Your Honor. It’s one that allows all interests to have full voice. Many of the abortions we see in certain states that I don’t think anybody would think would be moving to change their laws in a more restrictive direction.

AMY GOODMAN: Professor Katie Watson, if you can respond and the significance of this issue of so-called neutrality and Kavanaugh asserting, “Let the states decide; that’s letting the people decide”?

KATIE WATSON: This is such a dramatic and I think insincere error. The idea of neutrality, you could substitute the word “segregation” in everything he said. The Constitution is silent on segregation. The Constitution is silent on contraception. The Constitution is silent on interracial marriage, gay marriage. You could substitute all sorts of concepts there. As he said later, California and New York will do one thing and the people of Mississippi and Arkansas will do something different. We have heard that before. Fundamental rights are not something you’re supposed to have to beg for at the polls at every election cycle. So when he says the Constitution is neutral on abortion, what he is hiding is that the Constitution is not neutral on the personhood of women. So to claim this false neutrality is to throw all American women under the bus.

He cited Plessy v. Ferguson and Brown v. Board of Education as one of the cases. Plessy was reversed by Brown. I would like to use his own analogy to help illustrate how wrong he is. When I said earlier that all American women are harmed by what the court is on the brink of doing, gutting Roe by jettisoning the viability standard or potentially overruling the case—in Plessy versus Ferguson, the court in the case of segregated railways in Louisiana, a state that chose to do something different, that the court said it is not a badge of inferiority to have segregation. If African Americans feel that way, basically that is their problem. In Brown they said, no, segregation, separate is never equal.

So in this case, whether you are a lesbian, whether you are a postmenopausal woman who is infertile, whether you are a nun, it has no bearing on whether you are fertile and at risk of accidental pregnancy. The symbolic violence, the badge of inferiority, to say the Constitution is neutral on whether a state can commandeer your body and force you to produce a child against your will. To say the Constitution is neutral on that is to tell all women that the Supreme Court, our Constitution and many states see you first and foremost as a baby machine and do not trust or defer to your intellect and your moral agency to make a good and right decision. That is a badge of inferiority.

AMY GOODMAN: We want to thank you for being with us, Katie Watson, bioethics professor at Northwestern University Feinberg School of Medicine, lawyer and the author of Scarlet A: The Ethics, Law and Politics of Ordinary Abortion.