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Abortion in peril as Breyer, Kagan, Sotomayor defend it in oral arguments

The U.S. Supreme Court’s pro-choice justices, who unfortunately seem to be in a minority, made some very convincing points in a crucial abortion rights case today.

The court heard oral arguments for Dobbs v Jackson Women’s Health Organization, a case that would prohibit abortions in Mississippi after the 15th week of gestation. Should the court rule in favor of the abortion restriction, the very fabric of Roe v. Wade would be dismantled and abortion rights throughout the country would be in great peril. 

Of consequence in the oral arguments was the issue of stare decisis, which refers to precedent: to stand by rulings and reasonings previously decided by the court, in other words. Justice Stephen Breyer explained the importance of stare decisis in this case, stating that to re-examine Roe would “subvert the court’s legitimacy.” Justice Elena Kagan expounded upon this by explaining that a major goal of stare decisis is to “prevent people from thinking that this court is a political institution that will go back and forth” as its membership changes.

Indeed, the makeup of the Supreme Court has significantly changed since it ruled just a year and a half ago that hospital-admission requirements on abortion clinic doctors were unconstitutional. Since then, anti-abortion Justice Amy Coney Barrett replaced pro-abortion rights Justice Ruth Bader Ginsburg after her death in September 2020. As the composition of the Supreme Court has become ultraconservative, religious legislators are scrambling to overturn Roe v. Wade despite decades of precedent upholding it as constitutional. Justice Sonia Sotomayor asked as much: “Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts? I don’t see how it is possible.”

Perhaps one of the most impressive exchanges took place between Sotomayor and Mississippi Solicitor General Scott Stewart. In questioning Stewart about the motivation for state abortion restrictions, Sotomayor pointedly asked: “How is your interest anything but a religious view?” She continued, “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?” Sotomayor also questioned: “When does the life of the woman, and putting her at risk, enter the calculus?”

Sotomayor’s poignant statements underscore the foundation of abortion restrictions and bans. They also complement the amicus brief that the Freedom From Religion Foundation and its secular allies, Center For Inquiry and American Atheists, filed before the high court in this case. The brief, drafted by FFRF Associate Counsel Elizabeth Cavell with help from FFRF Legal Director Rebecca Markert, Senior Counsel Patrick Elliott and FFRF Reproductive Rights Intern Barbara Alvarez, states: “Doing away with the viability framework and asking courts to review and weigh state interests before viability will require courts to address the underlying purpose of such abortion bans — to enshrine into civil law a religious belief about when personhood begins.”

The Supreme Court is expected to rule on this case in 2022. Given the ultraconservative leanings of the majority of justices on the bench, abortion rights look endangered. In the meantime, it is imperative that we take secular action and stand up for abortion rights. Let’s call on our U.S. senators and demand that they pass the Women’s Health Protection Act. FFRF submitted formal testimony in support of this act, which would codify abortion rights in the statutes. Thanks to the work of many activist citizens, including FFRF members, it has passed the U.S. House. However, it faces a lot of resistance in the Senate. 

Call your senators to tell them to work to pass this vital piece of abortion legislation that will protect abortion rights regardless of the court’s ruling. There’s never been a more critical time. 

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