Implicating Washington’s abortion laws, Supreme Court debates Roe v. Wade

The U.S. Supreme Court is poised to undermine a landmark decision upholding a woman’s right to choose abortion.

On Wednesday, the court heard oral arguments regarding the constitutionality of a Mississippi law, passed in 2018, which outlaws abortion after 15 weeks of pregnancy, allegedly undermining Roe v. Wade’s dictum that abortion be allowed before fetus viability (generally considered to be 24 weeks).

“This is probably one of the most important abortion cases the court has heard in 30 years,” Seattle University School of Law professor Sital Kalantry told KIRO Radio’s Gee and Ursula Show.

“The court is considering, in a way, a Mississippi statute that clearly is already unconstitutional under the viability standard, because it only allows a termination of a pregnancy … within 15 weeks,” Kalantry said. “The composition of the court makes people worry that there is going to be a big change.”

After a flurry of appointments under the Trump administration, the U.S. Supreme Court skews conservative by majority, with only Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan on the record avowing to support Roe v. Wade.

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“From [their] oral arguments … yesterday, we heard Justice Kavanaugh asking questions that suggested that he is willing to overturn prior precedent in his questioning,” Kalantry continued.

Kavanaugh invoked previous Supreme Court decision reversals during oral arguments, referencing case law which formerly upheld segregation and anti-sodomy later determined to be unconstitutional. Extrapolating from there to Roe v. Wade, he implied that the court retains the ability to change its judgement on the matter.

“The problem, in my view, is that in those cases, … the court didn’t find that there was a constitutional right for people to not be segregated,” Kalantry added. “But the later cases actually found the constitutional rights. Here, we would be doing the reverse.”

“In Roe v Wade, the court found that there is a constitutional right to choose under privacy,” he said. “If their decision were to overturn it, it would be unrolling a prior constitutional protection.”

The court’s decision is not expected until June or July 2022, and there is a wide spectrum of potential outcomes therein. The court could overturn the Mississippi statute or not, either decision of which implicates Roe v. Wade and establishes precedent for other states as they grapple with the issue.

“We know that five members of the court are avowedly anti-abortion, ” Kalantry said. “They’re very committed to this. If one thinks abortion is wrong in, you know, Idaho, why is it not wrong in Washington? That’s going to be the next question to be asked.”

“Nobody can make a prediction of what the court will do,” Kalantry added. “Justice Roberts is going to try very hard to bring his conservative colleagues along into a compromise that might keep Roe in place.”

Washington preserves state law that further safeguards the right to abortion. Planned Parenthood v. Casey and Initiative 120 both secured a woman’s right to abortion before fetus viability.

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