At Supreme Court, Center Attorney Defends Precedent, Roe, the Right to Liberty, and More

A range of issues were discussed in this week’s oral arguments before the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization—the most consequential abortion rights case in generations. Julie Rikelman, Senior Litigation Director for the Center for Reproductive Rights, represented Jackson Women’s Health Organization, the only remaining abortion clinic in Mississippi, before the Court.

The case—which challenges Mississippi’s law banning abortion at 15 weeks of pregnancy—marks the first time the Supreme Court has agreed to consider the constitutionality of a pre-viability abortion ban since Roe v. Wade in 1973.

The nearly two-hour argument discussed the landmark rulings in Roe and Planned Parenthood v. Casey; stare decisis and the extremely narrow circumstances that would justify overriding decades of precedent; how generations have relied on the right to abortion; the importance of autonomy and bodily integrity to women’s lives; the impact of abortion bans; the safety of abortion and the risks of pregnancy; and the workability of the viability line, which has served as a bulwark against abortion bans for a half-century.

The arguments opened with the Mississippi Solicitor General, Scott Stewart, urging the Court to overrule Roe and Casey—and almost 50 years of precedent—to find that there is no right to abortion in the Constitution.

In response, Rikelman gave powerful arguments against Mississippi’s unconstitutional ban and in defense of abortion rights and the standards established by the Court in the Roe and Casey. She argued: “Stare decisis presents an especially high bar here. In Casey, this Court carefully examined and rejected every possible reason for overruling Roe, holding that a woman’s right to end a pregnancy until viability was a rule of law and component of liberty it could not renounce.”

“Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent,” said Rikelman. “For a state to take control of a woman’s body and demand that she go through pregnancy and childbirth, with all the physical risks and life-altering consequences that brings, is a fundamental deprivation of her liberty.”

Rikelman’s arguments emphasized the importance of the right to abortion for liberty and gender equality. She pointed out the real-world impact that upholding Mississippi’s ban would have on women’s health and equality, particularly for those who are struggling to make ends meet—and said that “[e]liminating or reducing the right to abortion will propel women backwards.”

Justice Sonia Sotomayor, in discussing the risks of forcing someone to carry a pregnancy to term, asked the Mississippi Solicitor General, “So when does the life of a woman and putting her at risk enter the calculus?”

After Rikelman, Elizabeth Prelogar, U.S. Solicitor General, presented arguments on behalf of the federal government in support of the Center’s case. “The real-world effects of overruling Roe and Casey would be severe and swift. Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy,” said Prelogar.

“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,” added Prelogar. “The court has never revoked a right that is so fundamental to so many.”

Showing concern for overruling decades of precedent, Justice Stephen Breyer quoted from Casey, the 1992 decision that reaffirmed that states cannot prohibit abortion before viability: “To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court’s legitimacy beyond any serious question.”

Justice Sotomayor defended the viability line, noting it had been repeatedly affirmed since Casey. She also expressed concern about how the Court would be perceived if it were to overturn Roe, Casey and other rulings, asking, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

After the arguments, Rikelman said, “For nearly 50 years, the Supreme Court has recognized and protected the right to abortion. Today, we urged the justices to stand by that precedent. Two generations since Roe have come to rely on the availability of legal abortion to shape their lives and futures. The advancements women have made towards gender equality will be sent hurtling backwards if they are unable to control their own bodies, lives and futures.”

Nancy Northup, president and CEO of the Center, said, “Today, both inside and outside the Supreme Court, it was abundantly clear that taking away the constitutional right to abortion would be a travesty of justice. One in four women in the United States has an abortion during her lifetime. The Supreme Court has long recognized that because of the impact on her life, health and future, this decision is a protected liberty right under the Constitution. Nothing in law or fact warrants taking this right away.”

A decision in Dobbs v. Jackson Women’s Health Organization is expected sometime in 2022.

Listen to the audio replay.

Read the transcript.