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WASHINGTON -- Wednesday's oral arguments at the Supreme Court in a case that could have profound effects on abortion laws in the U.S. encompassed a wide range of issues, from the effectiveness of contraception to questions of fundamental liberty and the reputation of the high court.

Justice Sonia Sotomayor said that in Mississippi, where the abortion law central to the case was passed, "the sponsors of this bill, the House bill in Mississippi, said, 'We're doing it because we have new [Supreme Court] justices' ... Will this institution survive the stench this creates in the public perception that the Constitution and its reading are just political acts? I don't see how it is possible."

The case the justices heard, , revolves around a law passed in Mississippi that outlaws abortions after 15 weeks' gestation, which is several weeks before the fetus is considered viable. At issue in the case is whether all pre-viability laws against abortions are unconstitutional. The plaintiffs in the case, which was argued in the Supreme Court by Mississippi Solicitor General Scott Stewart, JD, seek to overturn Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide up to the point of fetal viability, generally considered to be at 22-to-24 weeks.

"Roe v. Wade and Planned Parenthood v. Casey haunt our country," Stewart said in his opening statement, referring also to a second Supreme Court case in 1992 that upheld abortion rights. "They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They poison the law. They've choked off compromise. For 50 years, they've kept this court at the center of a political battle that it can never resolve."

"Abortion is a hard issue," he continued. "It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people. Roe and Casey have failed, but the people, if given the chance, will succeed. This court should overrule Roe and Casey and uphold the state's law."

Deprivation of Liberty Argument

But Julie Rikelman, JD, who represented the defendant -- Mississippi's lone remaining abortion clinic -- disagreed. "Mississippi's ban on abortion 2 months before viability is flatly unconstitutional under decades of precedent," she said. "Mississippi asks the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will. The court should refuse to do so."

"Casey and Roe were correct," said Rikelman, who is also senior litigation director at the Center for Reproductive Rights. "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 the fundamental deprivation of her liberty. Preserving a woman's right to make this decision until viability protects her liberty while logically balancing the other interests at stake." She noted that two generations of women have relied on the right to abortion and that "one out of every four women makes the decision to end a pregnancy."

Justice Elena Kagan brought up an argument made by many on the pro-choice side: that there is no reason to reconsider Roe or Casey because nothing has fundamentally changed since those cases were decided. "In the end, we are in the same exact place as we were then -- except that we're not because there's been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law, that this is part of the fabric of women's existence in this country," she said. "And that places us in an entirely different situation than if you had come in 50 years ago and made the same arguments."

"Let's say nothing has changed -- that's not a point in Roe or Casey's favor," Stewart responded. "They have no basis in the Constitution. They adopt a right that purposefully leads to the termination of, now, millions of human lives. If nothing had changed, they'd be just as bad as they were 30 years ago, 50 years ago, and now we just have decades of damage."

Standards Other Than Viability?

Chief Justice John Roberts asked Stewart about what other criteria -- besides viability -- could be used to determine whether an abortion was legal. "If we don't overrule Casey or Roe, do you have a standard that you propose, other than viability?" he asked. Stewart replied that he would like to see a standard involving "undue burden" -- the idea that any particular abortion prohibition would be acceptable as long as it doesn't place an undue burden on the person seeking the abortion. "The choice would be undue burden standard, untethered from any bright-line viability rule," he said.

Justice Amy Coney Barrett wondered about the impact of "safe haven" laws -- implemented in all 50 states -- which allow parents to terminate their parental rights, such as by giving the child up for adoption. "You focus on the ways in which forced motherhood would hinder women's access to the workplace and to equal opportunities," she said to Rikelman. "Why don't the safe haven laws take care of that problem? There is without question an infringement on bodily autonomy ... However, it doesn't seem to me to follow that pregnancy and then parenthood are all part of the same burden."

"The idea that a woman could place a child up for adoption has, of course, been true since Roe, so it's a consideration that the court already had before it when it decided those cases and adhered to the viability line," Rikelman said in response. "In addition, we don't just focus on the burdens of parenting and neither did Roe and Casey; instead, pregnancy itself is unique and imposes unique physical demands and risks on women, and in fact has impacts on all of their lives and their ability to care for other children or their family members, and on their ability to work." She noted that the risks of childbirth are particularly high in Mississippi -- "it's 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion. And those risks are disproportionately threatening the lives of women of color."

Justice Brett Kavanaugh asked Rikelman about arguments by some on the other side that "the court has been forced by the cases to pick sides on the most contentious social debate in American life, and to do so in a situation where they say that the Constitution is neutral on the question of abortion ... They also continue that because the Constitution is neutral, that this Court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life, but because they say the Constitution doesn't give us the authority, we should leave it to the states."

"Those very same arguments were made in Casey and the court rejected them, saying that this philosophical disagreement can't be resolved in the way that a woman has no choice in the matter," Rikelman said. "And second, I don't think it would be a neutral position. The Constitution provides a guarantee of liberty. The court has interpreted that liberty to include the ability to make decisions related to childbearing, marriage, and family. Women have an equal right to liberty under the Constitution, and if they're not able to make this decision, it means states can take control of women's bodies and forced them to endure months of pregnancy and childbirth" even when they don't want to do so.

Role of Contraception

Justice Sotomayor asked Solicitor General Elizabeth Prelogar, who represented the Biden administration, to address the argument by the state of Mississippi that women don't need to rely on a legal right to abortion because contraception works so well that they don't have to worry about an unplanned pregnancy. "I think on the facts, the state is mistaken here," Prelogar said. "The contraceptive failure rate in this country is at about 10% using the most common methods. That means that of women using contraceptives, approximately one in 10 will experience pregnancy in the first year of use alone. About half of women who have unplanned pregnancies were on contraceptives in the month that that occurred. And so I think the idea that contraceptives could make the need for abortion disappear is just contrary to the factual reality."

After the oral arguments were finished, lawyers who heard the proceedings had varying opinions on how they went. "I don't think it was a great day for the counsel from Mississippi," said Aron Solomon, JD, chief legal analyst for Esquire Digital, a legal marketing company. "I think he got off to a slow start, and I don't think he turned it around." On the other hand, he said, Prelogar "did a really good job." As to what the court might decide, Solomon predicted that the justices "will take a chunk out of Casey in this case and that may be the beginning of the dismantling of Casey and Roe as precedent ... I think they may find that there's things about this Mississippi law that are fatally flawed, but the court won't say that all heartbeat abortion laws are unconstitutional ... So I think the end result is just going to be more unsettled abortion law."

He added that with a 6-3 conservative majority on the court, such a decision would actually be a win for abortion rights supporters. "This is like playing a football game with three players down, but you managed to only lose by seven. It's a really big deal."

Jennifer Popik, JD, director of federal legislation for the National Right to Life Committee, said in an email that the group was "encouraged following today's oral arguments before the Supreme Court. Based on the questions, it seems likely that a majority of justices are at least open to considering permitting greater protections for unborn children. Several members of the court seemed to signal a possible willingness to either partially or even fully overrule the Roe v. Wade decision, as modified by Casey v. Planned Parenthood. Some of the questions signaled other possible outcomes, including rejecting viability as the line where babies might be protected, permitting states to assert compelling interests at some point prior to viability."

A decision on the case will come next year, most likely in late June, according to Rikelman, who spoke after the arguments concluded, on a webinar sponsored by the Center for Reproductive Rights.

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