Justice Kavanaugh At Abortion Case Arguments: ‘Why Should This Court Be The Arbiter’ Rather Than Congress, States, ‘The People’

Justice Brett Kavanaugh questioned U.S. Solicitor General Elizabeth Prelogar during arguments concerning the Mississippi abortion case at the Supreme Court on Wednesday. 

 Kavanaugh made the point about why abortion is such a contentious issue in the country, and asked what Prelogar’s response would be to the state’s arguments that the states and the citizens should decide for themselves what their abortion laws should be. 

Kavanaugh stated, “The other side says, though, that there are two interests at stake. That there’s also the interest in fetal life at stake, as well. And in your brief, you say that the existing framework accommodates — that’s your word — both the interest of the pregnant woman and the interest of the fetus. 

“And the problem, I think the other side would say, and the reason this issue’s hard, is that you can’t accommodate both interests. You have to pick. That’s the fundamental problem. 

“One interest has to prevail over the other at any given point in time. That’s why this is so challenging, I think. And the question then becomes what does the constitution say about that,” he said, asking what her reaction is to the other side’s theme. 

He asked, “When you have those two interests at stake, and both are important, as you acknowledge…why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people, being able to resolve this?

“And there’ll be different answers in Mississippi and New York, different answers in Alabama than California, because there are two different interests at stake and the people in those states might value those interests somewhat differently. Why is that not the right answer?”

Prelogar answered, “Justice Kavanaugh, it’s not the right answer because the court correctly recognized that this is a fundamental right of women and the nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not.”

As additionally reported by The New York Times: 

Justice Kavanaugh says Prelogar has made a forceful argument but says the other side would argue is that there are two lives at stake that have their own interests – that of the woman and that of the fetus. This is hard because you have to pick one or the other. Why should the Supreme Court be the arbiter rather than Congress and state legislatures and the people, with different answers in Mississippi and Alabama than New York and California? Prelogar says that’s not the right answer because the Supreme Court correctly recognized that this a fundamental right of women, and governments cannot violate fundamental rights.

The Supreme Court has been hearing arguments that could dramatically change the landscape of abortion in the country. 

The case, Dobbs v. Jackson Women’s Health Organization, concerns a 2018 law in Mississippi that bans most abortions after 15 weeks of pregnancy. As the law stands now, Roe v. Wade and the decisions that came after it hold that states have to allow a woman to be able to get an abortion up to the point of viability, or when the baby can survive on its own outside the womb. Most states hold this mark at around 20 to 24 weeks, so the Mississippi law is a direct violation. 

Mississippi said in its original petition that the questions presented to the Court do not require them to overturn Roe or Planned Parenthood v. Casey. In its brief in July, however, the state wrote, “Roe and Casey are egregiously wrong” and said the court should overrule those decisions.

Many are asking why this case, in particular, is so important and being watched so closely. It has to do with the Supreme Court and the question they plan to consider. 

When the Supreme Court agreed to hear the Mississippi case, it said it would consider the question of “Whether all pre-viability prohibitions on elective abortions are unconstitutional,” meaning that with this decision, they could rule that states can make their own laws regarding abortion again — even possibly banning it up to the point of conception. The high court could give power back to the states to restrict abortion like they were able to do prior to the 1973 Roe v. Wade ruling.

There are currently at least 21 states that have pro-life laws or constitutional amendments that would make almost all abortions in their states illegal if Roe is overturned. 

There are an additional five states that would probably prohibit abortion as soon as they could. According to the Guttmacher Institute, these states include Florida, Indiana, Montana, Nebraska, and Wyoming. 

This is considered to be the most conservative Supreme Court in decades and their decision will likely be announced next summer. 

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