Sotomayor, Supreme Court liberals sound alarm in fight to overturn

Supreme Court Justice Sonia Sotomayor on Wednesday expressed fear that a bid to overturn decades-old abortion rights, if successful, would destroy the public perception of the high court, and thus the institution itself.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” asked Sotomayor, one of three liberal justices on the nine-member bench, at the start of oral arguments in a case challenging Roe v. Wade and Planned Parenthood v. Casey.

“I don’t see how it is possible,” Sotomayor said.

The case, Dobbs v. Jackson Women’s Health Organization, marks the most significant challenge to abortion rights in decades. It centers on a Mississippi law that would ban almost all abortions after 15 weeks of pregnancy. Lower courts blocked the law, ruling that it violates the rights enshrined by the Supreme Court’s decisions in 1973’s Roe and 1992’s Casey.

Taken together, those rulings have held that states cannot ban abortion before the point of fetal viability — around 24 weeks of gestation — and that laws restricting abortion should not pose an “undue burden.”

Roe, Casey and other “watershed decisions” — such as Brown v. Board of Education, which ruled segregation unconstitutional — have created an “entrenched set of expectations in our society,” Sotomayor said.

“If people actually believe it’s all political, how will we survive? How will the court survive?” she asked.

Mississippi Solicitor General Scott Stewart responded that to avoid the appearance of a politicized court, the justices should reach a decision squarely grounded in the text of the Constitution.

Stewart argued that Roe and Casey “haunt our country,” and that the right to an abortion is not supported in the Constitution but in “abstract concepts” that the high court “has rejected in other contexts.”

The liberal justices Sotomayor, Elena Kagan and Stephen Breyer grilled Stewart about the justification for reversing or undermining precedent that the court has followed for three decades.

To overturn a longstanding precedent, “usually there has to be a justification, a strong justification,” Kagan said, adding that views on the Roe and Casey decisions have not significantly changed since they were made.

The 6-3 conservative majority questioned Julie Rikelman, an attorney with the Center for Reproductive Rights arguing in favor of Roe and Casey, about the precedent that protects abortion rights before fetal viability.

“Viability, it seems to me, doesn’t have anything to do with choice,” Chief Justice John Roberts said. “If it really is an issue about choice, why is 15 weeks not enough time?”

Rikelman argued that the viability threshold balances competing interests and should be preserved.

This is developing news. Please check back for updates.