Justice Kavanaugh Asks Why the High Court Should Decide on Abortion Instead of Congress, States, and the People

Feng Yu / shutterstock.com
Feng Yu / shutterstock.com

Supreme Court Justice Brett Kavanaugh went toe to toe with U.S. Solicitor General Elizabeth Prelogar amid ongoing arguments in the Mississippi abortion case. Judge Kavanaugh focused on the reason why abortion is such an intense issue in America.

Kavanaugh asked what the Solicitor General’s response would be to the argument from Mississippi that states and citizens should be able to decide for themselves what their abortion laws should be. He noted that the pro-life side believes that there are two interests in question…the woman and the fetal life. The justice reminded Prelogar that in her brief, she maintained that the existing framework accommodates both the pregnant woman’s interests and the interest of the fetus. Kavanaugh noted that Prelogar actually used the word “accommodate.”

“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,” Justice Kavanaugh said.

Kavanaugh went on to explain that one interest must always prevail over another and that is why this issue is very challenging. He asked that if you believe that there are two important interests at stake, why should the court be the arbiter instead of Congress? Going even further, he said that it could be decided in the hands of state legislatures and state courts. His point was that maybe it should be the people that decide this contentious issue and that needs to be addressed by what it says in the constitution.

Kavanaugh stressed that the answer to “accommodating” the two different interests will be different in Mississippi than it would be in New York and that it will be different in Alabama than it would be in California.

Prelogar responded by standing on the precedent that the court had already decided that this issue is focused on the fundamental right of women. She said that the nature of these rights is not left up to state legislatures to decide whether or not they should be honored.

Kavanaugh described his work looking at how the court applies precedent and how unusual it is for the High Court to overrule precedent. He added that the court must set forth a series of conditions that must be analyzed before you could consider overruling a precedent-setting case. At one point, he asked the attorney for the abortion providers if the court concluded that Roe was decided wrongly, why wouldn’t the history of the court’s decisions lead us to the conclusion that the right answer is a position of neutrality.

All eyes are on this significant court case, Dobbs v. Jackson Women’s Health Organization, because it has the potential to change the laws on abortion across the land. The 2018 Mississippi law in question bans most abortions after 15 weeks of pregnancy. The present law since 1973 maintains that states have to allow a woman to get an abortion up to the point of viability. Most states hold that mark at 20 to 24 weeks.

Although the original petition from Mississippi said that the questions in the case do not require the High Court to overturn the 1973 ruling, in their brief, the state wrote that both Roe and Casey are “egregiously wrong” and said the court should overrule those decisions.

The reason that this case is so important has to do with the question that the Supreme Court plans to focus on. When the Supreme Court agreed to hear this case, they said that they would focus on this question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”

So the decision, in this case, could mean that states can make their own laws regarding abortion. This is the way it was before Roe. And right now, 21 states have pro-life laws or constitutional amendments that would cause nearly all abortions in their states to be illegal if Roe is overturned. There are five more states that would likely prohibit abortion if that was possible.

For many, this is the case that they have been waiting for…but the wait will go on until a ruling is made in the summer.