How Conservatives on the Supreme Court Are Wrong on Abortion

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Health care is a human right, not a privilege. With the passage of the Affordable Care Act in 2010, that idea was officially codified into law bringing much-needed healthcare for tens of millions of Americans. For America’s women, abortion access is an essential part of this right, and more importantly, their equality. But today, their rights face an unprecedented challenge in the Supreme Court of the United States.


Last week on December 1st, Dodd v. Jackson Women’s Health Organization was orally argued before the Supreme Court with a decision expected in June. This is the case that challenges Mississippi’s law banning abortions after 15 weeks, which violates the federal 24-week viability test established in the 1973 landmark decision of Roe v. Wade, affirmed in 1992 in Planned Parenthood v. Casey. If the court were to uphold Mississippi’s abortion law, the court could effectively be overturning decades of precedent surrounding abortion law and deprive millions of American women of their fundamental right to this essential healthcare.


Tragically, even before the case was heard, legal experts painted a grim picture that there would be a curtailing of abortion law in some form. As it currently stands, the Supreme Court contains a 6-3 conservative majority, and three of the most recent appointees – Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – were appointed by Donald Trump with the express purpose of overturning Roe.


The oral arguments of the case were broadcast live, so the sides were passionately drawn in real-time about what each justice said and how their words were interpreted. The central question that surrounded the argument had to do with the concept of fetal viability – the point at which a fetus can survive outside of a mother’s womb. While the three liberal justices – Sonia Sotomayor, Elena Kagan, and Steven Beyer – were adamant that Roe v. Wade codified viability to 24 weeks, the six conservative justices seemed comfortable upholding Mississippi’s law. They contended that the line of fetal viability drawn by Roe v. Wade was arbitrary and that states could draw the line as they see fit.


Leading the charge on this point was Chief Justice Roberts, who posited the question of what was wrong with Mississippi’s 15-week ban instead of Roe’s 24 weeks. “If you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice — opportunity to choose — and why would 15 weeks be an inappropriate line?” he asked.


Considered both an institutionalist and an incrementalist, Roberts was doing his utmost to roll back federal abortion laws without gutting Roe v. Wade protection entirely. However, it became immediately apparent that the other conservatives on the court were not interested in a moderate approach. They wanted Roe gone entirely.


But more importantly, Robert’s reasoning is foolhardy from a medical perspective!  When looking at modern obstetrical care, scientific breakthroughs have allowed for the increased frequency and accuracy of diagnosing a myriad of genetic and anatomical/structural abnormalities that directly affects the fetus.  Many of these disorders are fatal either during uterine life or following birth.  Additionally, another group of abnormalities may not be fatal, but would lead to severe handicaps for the baby and would limit the child’s ability to have a productive, independent life, frequently associated with ongoing medical problems tied to great physical and mental suffering.


Much has changed in the field of prenatal diagnoses from the 1973 Roe-era until now, expanding the abilities to detect these abnormalities.  Standard obstetrical practices that involve screening and confirming these abnormalities cannot be reasonably accomplished in time for a woman to make an informed decision by the 15-week window set by Mississippi.  Major structural abnormalities of the fetal brain usually cannot be confirmed until 18 to 20 weeks of gestation.  Yes, Justice Roberts, nine weeks is a critically important time difference!


In addition to fetal health concerns, many severe complications of pregnancy may not be detected or diagnosed in the mother until after the 15-weeks.  If these conditions put the woman at considerable risk of organ damage and even death, the decision to terminate the pregnancy is not elective.  How can we morally and ethically condemn and subject these critically ill women to accepting these outcomes by denying them timely access to medically safe options that can preserve their wellbeing and save their lives, all by imposing arbitrary, politically derived, limitations and restrictions?


But perhaps the most egregious argument put forward came from the newest addition to the Supreme Court – Justice Amy Coney Barrett.  During oral argument, Barrett spoke of the federal “safe haven” laws, which states that women can drop off newborns at designated government sites so that they do not have to carry out the task of motherhood. To Barrett, these safe haven laws essentially eliminate the burden of parenting. She said,

However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.  And so it seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion.


These words speak to the core of what is so wrong in compelling women ­– particularly those without means – to carry to term an unwanted fetus. To Justice Barrett, any impact on a woman’s liberty, economics, and way of life would be remedied simply by relinquishing their child to the state.


The lawyer representing the Jackson Women’s Health Organization pointed out that the haven laws don’t matter because, as she rightly stated, “pregnancy itself is unique.” And she is completely correct. Deciding to carry a fetus to term can increase a woman’s risk of increased morbidity and even death related to her pregnancy and delivery.  Research in the 1980s undertaken by the CDC demonstrated that any method to terminate a pregnancy performed by appropriately trained medical providers was safer than carrying a pregnancy to term when one considers the myriad of potential pregnancy-related complications and mortality risks associated with achieving a full-term pregnancy and delivery.  These risks are even greater when one factors in the additional morbidity and mortality risks if a woman has additional medical problems at the time of, and during, her pregnancy.


Restricting a woman’s access to a safe medical termination for an unwanted or significantly medically complicated pregnancy may also severely limit her options and force her to accept these potential risks of medical complications and even death.  The acceptance of these risks is always the case when a woman carries her fetus to term, even if adoption becomes the goal.


Underpinning all these false medical arguments was shocking legal thinking. Justice Kavanaugh said that the legal precedent set by Roe v. Wade could be overturned due to a litany of prior high court cases where precedent was overturned. But those cases expanded the rights of affected Americans, not decimate nearly 50 years of liberty provided to women who lawfully rely on established law in regulating their reproductive rights.


Justice Thomas, a strict constitutional textualist, mused that if a right like abortion is not enumerated in the Constitution, it does not exist.  Where, then, would other rights that are given license by court precedent stand without constitutional text, like for privacy, contraception, the LGBTQ community, and same-sex marriage?


After hearing their conservative colleagues, the liberal justices voiced their discontent, arguing that overturning Roe would bring about an existential threat to the court’s legitimacy.  Justice Sotomayor doubted that the court would survive the “stench” in the public realm if Roe is overturned. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked.


The conservative majority of the Supreme Court is not “pro-life”, they are “pro-birth”. Their questioning clearly exhibited an improper understanding of the medicine and science required to ensure the life and wellbeing of a woman who would have to endure a potentially dangerous, life-compromising pregnancy. They would no sooner subject a woman to grievous injury or death in carrying a fetus to term than broach the reality of a warranted abortion. Just as apparently politicians and state legislatures are doing, the court’s conservatives errantly believe they are in the best position to not only make choices for our society that have the most impact on women’s health and reproductive rights here, but more importantly, to diminish their freedom, liberty, and wellbeing as American citizens.


Authors’ Note

Mr. Zaremski has been a contributor for this site for some time with 32 published articles, keyed to his background and nearly 50 years as an attorney and advocate, focused on issues at the crossroads of law, medicine and healthcare policy. Dr. Linn is equally distinguished for a similar period, but as an esteemed member of the medical profession whose specialty lay in Obstetrics/Gynecology, a past chair of the Ob/Gyn department at a preeminent Chicago health care system (ret.) as well as a noted professor of Obstetrics and Gynecology. He does not speak for any of his prior affiliations, though he joins with Mr. Zaremski in speaking with one voice to address perhaps the most pressing issue affecting women’s reproductive rights in a generation, intersecting law and medicine.


Miles J. Zaremski

A graduate of Case Law School in Cleveland, Miles Zaremski is the longest-serving chair of the American Bar Assoc.’s Standing Committee on Medical Professional Liability and a past president of the international organization, The American College of Legal Medicine.



Edward S. Linn

Dr. Linn is a Professor Emeritus and former Interim Chair of the Department of Obstetrics and Gynecology at Rush University Medical Center and Rush Medical College, Chicago. He previously served as both the Chairperson of the Department of Obstetrics and Gynecology for Cook County Health (Chicago), and as an Associate Professor of Obstetrics and Gynecology at the Northwestern Feinberg School of Medicine, also in Chicago.


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