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Supreme Court conservatives want to topple abortion rights — but can’t agree on how

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The goals of individual judges, based on their recent writings, range from Roe’s reversal against Wade to the ban on clinics challenging restrictions on behalf of women to relax the rule states must meet to limit women’s access to the procedure.

Judge Samuel Alito has attacked a decades-long precedent that allows doctors and other third parties to sue states for rules that could affect the rights of a pregnant woman. His position would reduce the challenges to state abortion laws.

New internal tensions have arisen in the millennial controversy, as the six Republican-appointed right-wing judges diverge on the restriction of precedent and clash more strongly with the three Liberal Democrats called to court.

Judges could take it one step closer to their next chapter, as they meet privately on Friday to consider whether to adopt the Mississippi abortion ban after 15 weeks of pregnancy.

Again, the newly reconfigured court may want to wait to take any dramatic action on abortion. Several related laws are facing as states continue to adopt new bans, including the almost total abortion ban in Arkansas approved earlier this month with no exceptions in cases of rape or incest.
Although the number of abortions nationwide has declined over the decades, culturally and religiously severe state restrictions and subsequent litigation have not diminished. Conflicts have intensified over the increasingly conservative Supreme Court. Former President Donald Trump, whor appointed three new judges, had promised to appoint judges to oppose Roe against Wade.

If judges adopted a 15-week abortion ban and considered reversing the precedent of decades, it would intensify national divisions. Even if the judges eventually deny Mississippi’s request, the case could give individual judges the opportunity to make statements regarding the denial, setting out their arguments for future setbacks in reproductive rights.

Mississippi officials have appealed to U.S. Court of Appeals ruling invalidating the 15-week ban because the Supreme Court precedent precludes the prohibition of abortions prior to viability, that is, when the fetus could not live outside the uterus.
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Referring to the traditional balance of interests of the high court, the appellate court wrote: “As far as viability is concerned, it is up to women, not the state, to weigh the risks to maternal health and take into account personal values ​​and beliefs when deciding whether to have an abortion. ”

The pending Mississippi case already shows signs of conflict between the judges: they have considered, but then postponed the action on the dispute for nearly six months, listing it for discussion in private sessions, but without offering a word on whether they would reject him, as they have done. similar cases of prohibitions on abortion during early pregnancy, or scheduling the controversy for oral discussion and decision.

Disputes in this area of ​​the law are almost always reduced to a single justice vote and generate tensions around it.

“In the country, people have very strong feelings,” Liberal says Judge Stephen Breyer he said during oral arguments in a 2020 Louisiana abortion case, “and a lot of people think morally that it’s wrong and a lot of people think morally that the opposite is wrong.”

On the current bench, Magistrates Thomas, 72, Alito, 70, and Gorsuch, 53, have opted for relatively firm ground. Roberts, 66, and Judge Brett Kavanaugh, 56, voted to provide legal proof covering state abortion regulation and sent mixed signals on the overturned basic precedent.

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The new, sixth curator of the court, Judge Amy Coney Barrett, 49, has yet to write about an abortion case. Before entering the bench, he expressed skepticism about reproductive rights.

During his confirmation hearing in October, then-Senate Speaker Lindsey Graham, a South Carolina Republican, said of Barrett, a committed Catholic: “This is the first time in American history that we propose a woman who is ashamed in favor of of life and embracing his faith without apologizing. ” ”

Barrett rejected his testimony in expressing his views and said he could not “pre-commit” the issue of abortion.

On the left side of the bench, Judges Breyer, 82, Sonia Sotomayor, 66, and Elena Kagan, 60, have consistently voted to reaffirm abortion rights and diminish states’ power to restrict abortion. women’s access to the procedure.

Urging judges to hear Mississippi’s appeal against the lower court’s ruling, state attorney general Lynn Fitch has asked the court to clarify its rule, to set aside clinic claims in women’s name and to erase the dividing line of restrictions based on fetal viability.

The Jackson Women’s Health Organization, represented by lawyers from the National Center for Reproductive Rights, countered that for nearly 50 years the Supreme Court has said states could not prevent a woman from ending her pregnancy before the fetus could survive outside its body.

“Before viability,” they wrote, “the interests of the state, whatever they may be, cannot override the interests of a pregnant person in her freedom and autonomy over her own body.”

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Where Alito and Thomas want the court to arrive

In the original touchstone of abortion, Roe v. Wade, judges ruled that women have a constitutional right to privacy that covers the decision to end a pregnancy.

Current standards go back to a 1992 milestone, Planned Parenthood of Southeastern Pennsylvania v. Casey, when the court reaffirmed Roe’s statement that women are entitled to abortion before viability, which judges established between 23 and 24 weeks, and banned the government from placing an “undue burden” on the right.

Thomas has been very provocative in urging his colleagues to reconsider these decisions.

“Roe is seriously wrong for many reasons,” he wrote in a dissenting opinion when the court overturned a Louisiana abortion regulation in 2020, “but the bottom line is that its fundamental foundation, that the Constitution protects a woman’s right to abort her child to be born, does not find no support in the text of the Fourteenth Amendment “.
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In separate cases from 2019, he stated: “From the beginning, birth control and abortion were promoted. means of performing eugenics“and called the standard an” undue burden “of Casey’s 1992 decision” of an aberration of constitutional law “and” demonstrably erroneous. ”

Alito has focused on the legal position of third parties, that is, the ability of a party to assert a right on behalf of another person with shared interests.

He says it creates conflicts of interest between abortion providers and women seeking their services; Advocates for abortion rights argue that clinics are better positioned to claim rights than pregnant women and that they may be especially vulnerable to harassment.

In the Louisiana controversy over accreditation requirements for doctors performing abortions, Alito wrote, “The idea that a regulated party may invoke the right of a third party with the goal of attacking enacted legislation to protect the third party it is impressive. Given the apparent conflict of interest, this concept would be rejected out of hand in a case that did not involve abortion. ” Alito joined in this part of his opinion Thomas and Gorsuch.

In the same case – June Medical Services v. Russo – Gorsuch wrote that the court owed greater deference to state lawmakers. He also criticized a balance test used by a majority of a court in a 2016 abortion case and invoked by the Liberals in 2020 as “little more than the judicial version of a hunter’s stew: throw away everything that it looks interesting, stirring and seasoning to taste “.

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This evidence, detailed in a 2016 case that overturned a Texas law, forces judges to balance the health benefits a regulation could offer pregnant women with its potential burden on their right to health care. ‘abortion.

The 2020 Louisiana case involved a medical restriction similar to the Texas measure. Based on the 2016 case, Roberts provided the fifth vote to the Liberals to invalidate the Louisiana version. But he, like his Conservative brothers, found the 2016 case rule flawed.

(He refused to sign Breyer’s opinion, which was joined by Sotomayor, Kagan, and the late Judge Ruth Bader Ginsburg.)

Roberts ’narrower approach would give greater discretion to state lawmakers and improve their ability to justify restrictions on abortion.

Referring to the 1992 Supreme Court standard-setting milestone, Roberts wrote in the 2020 case: “Nothing about Casey suggested that assessing the costs and benefits of an abortion regulation was a job for the court “.

And the chief judge, who was no longer the tipping vote on abortion, though it still influences, added that trying to do so “would require us to act as legislators, not as judges.”

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