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The goals of individual judges, based on their recent writings, range from overturning Roe v. Wade, to banning clinics from challenging restrictions on behalf of women, to relaxing the standard that states must meet. to limit women’s access to the procedure.
Judge Samuel Alito attacked a decades-old precedent that allows doctors and other third parties to sue states over regulations that could infringe on a pregnant woman’s rights. His position would reduce the challenges to national abortion laws.
New internal tensions in the centuries-old controversy have arisen, as the six right-wing Republican-appointed judges diverge to reduce the previous one and clash more sharply with the other three Democrat-appointed liberals.
Judges could move closer to their next chapter by meeting privately on Friday to consider whether to take Mississippi’s ban on abortions after 15 weeks of pregnancy.
If judges decide to ban abortion for 15 weeks and consider overturning a decades-old precedent, it would intensify national divisions. Even if judges ultimately dismiss Mississippi’s petition, the case could give individual judges a chance to make statements relating to the denial, setting out their arguments for future cancellations of reproductive rights.
Referring to the traditional balancing of the interests of the High Court, the appeals court wrote: “ Until viability, it is for women, not the state, to weigh the risks to maternal health and take personal values and beliefs into account when deciding whether to have an abortion. . ”
The pending Mississippi case is already showing signs of conflict between the judges: they considered and then postponed action on the dispute for nearly six months, putting it up for discussion in private session without however saying whether they would reject it, as they did. similar cases of early pregnancy abortion bans, or schedule the controversy for oral argument and decision.
Disputes in this area of law almost always boil down to the vote of a single court and generate tensions everywhere.
On the current bench, judges Thomas, 72, Alito, 70, and Gorsuch, 53, staked out relatively firm ground. Roberts, 66, and Judge Brett Kavanaugh, 56, voted to relax the legal test covering state abortion regulation and sent mixed signals about overriding the fundamental precedent.
The court’s new sixth conservative, Justice Amy Coney Barrett, 49, has yet to write about an abortion case. Before joining the bench, she expressed her skepticism about reproductive rights.
Barrett in her testimony declined to express her point of view and said she could not “pre-engage” on the subject of abortion.
On the left side of the bench, Justices Breyer, 82, Sonia Sotomayor, 66, and Elena Kagan, 60, have consistently voted to reaffirm the right to abortion and reduce the power of states to restrict access to women. women at the procedure.
Urging judges to hear Mississippi’s appeal against the lower court’s decision, State Attorney General Lynn Fitch called on the court to clarify its standard, dismiss the lawsuits on behalf of the women, and clear the line of demarcation for restrictions based on fetal viability.
The Jackson Women’s Health Organization, represented by attorneys for the National Center for Reproductive Rights, countered that for nearly 50 years the Supreme Court has said states may not prevent a woman from terminating her pregnancy before that the fetus cannot survive outside its body.
“Before viability”, they wrote, “the interests of the state, whatever they may be, cannot prevail over the interests of a pregnant person in his freedom and autonomy over his own body” .
Where Alito and Thomas want the court to go
In the original touchstone of abortion, Roe v. Wade, judges said women have a constitutional right to privacy that covers the decision to terminate a pregnancy.
Thomas was very provocative in urging his colleagues to reconsider these decisions.
Alito focused on the legal status of a third party, that is, the ability of one party to assert a right on behalf of another with common interests.
He says this creates conflicts of interest between abortion providers and the women seeking their services; Abortion rights advocates counter that clinics are better placed to defend their rights than pregnant women and may be particularly vulnerable to harassment.
In the Louisiana controversy over the accreditation requirements for physicians who perform abortions, Alito wrote: “The idea that a regulated party can invoke the right of a third party for the purpose of attacking the law. legislation enacted to protect the third party is astounding. Given the apparent conflict of interest, this concept would be dismissed out of hand in a case not involving an abortion. “Alito was joined in this part of his opinion by Thomas and Gorsuch.
In the same case – June Medical Services v. Russo – Gorsuch wrote that the court had greater deference to state lawmakers. He also criticized a balancing test used by a judicial majority in a 2016 abortion case and cited by the liberals in 2020 as “little more than the judicial version of a hunter’s stew: throw out whatever looks interesting, stir and season to taste. ”
This test, detailed in a 2016 case that struck down a Texas law, requires judges to balance the health benefits a regulation could offer pregnant women with its potential burden on their abortion rights.
The 2020 Louisiana case involved a medical restriction similar to the Texas measure. Based on the 2016 case, Roberts provided the Liberals with the fifth vote to invalidate the Louisiana version. But he, like his conservative brethren, found the standard of the 2016 affair flawed.
(He declined to sign the Breyer opinion joined by Sotomayor, Kagan, and the late judge Ruth Bader Ginsburg.)
Referring to the 1992 Supreme Court milestone that set standards, Roberts wrote in the 2020 case: “Nothing about Casey suggested that a weighting of the costs and benefits of an abortion settlement was a job for the court. ”
And the chief justice, who is no longer the alternative abortion vote but still influential, added that trying to do so “would force us to act as lawmakers, not as judges.”
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