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Supreme Court hears arguments in Landmark Mississippi abortion case

A MARTINEZ, HOST:

The U.S. Supreme Court is hearing pivotal arguments today. At issue - whether to reverse the court's nearly half-century-old decision, Roe v. Wade, and subsequent decisions declaring that pregnant people have a constitutional right to terminate a pregnancy. Today's hearing concerns a Mississippi law that bans abortions after 15 weeks of pregnancy and directly challenges the 1973 landmark ruling.

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SONIA SOTOMAYOR: The issue of when life begins has been hotly debated by philosophers since the beginning of time. It's still debated in religions.

SCOTT STEWART: A right to abortion is not grounded in the text, and it's grounded on abstract concepts that this court has rejected in other contexts.

MARTINEZ: Joining us now is Priscilla J. Smith, who teaches reproductive rights at Yale Law School and has been following the arguments of the Supreme Court very closely this morning. Priscilla, welcome to the show.

PRISCILLA J SMITH: Thanks so much.

MARTINEZ: Now, you've been following this morning's arguments. What are your initial takeaways?

SMITH: OK, I have three points, and then we'll kind of get into it more quickly. First, it's incredibly stressful argument - very hot court, lots of questions for both sides. Second, if they uphold the law banning abortion starting at 15 weeks, we have to be clear, no matter what the court says, that the court has overturned Roe, because the central tenet of Roe is the availability of abortions up to viability to preserve women's health and her right to liberty and equality. And then finally - and I think this is probably what is on everybody's mind right now - is what's the vote going to be and who can count to five, right? Can it - is it the 60%-plus of Americans who think abortion should be legal in all or most cases or it's - or is it Mississippi? Can we add Roberts to the three liberals? And if so, can we get another one of the conservatives and make it to five?

MARTINEZ: And so on that - because, yeah...

SMITH: Yep.

MARTINEZ: ...The Supreme Court - we - there's a 6-3 conservative majority there. I mean, how much of a difference do you think that will make? And that might be an obvious answer to that question, but what do you think?

SMITH: Yeah. I mean, obviously the court is stacked against us. But I think there's a possibility, maybe even a likelihood, that Roberts would join the liberals because he is particularly concerned about the role of the court and how the court is viewed, the legitimacy of the court in the eyes of the public. Is it a political institution or not? So that's a possibility for Roberts. And then the question is, is there a vote in the next four - in - you know, among the other four conservatives? And I'm having a hard time finding one of them to get to five votes for the - what I would say are the good guys in this case.

MARTINEZ: Now, you're a former attorney for the Center for Reproductive Rights, which is challenging the constitutionality of that Mississippi law. What makes today's arguments, Priscilla, so pivotal for the future of abortion rights in this country?

SMITH: The reason it's so important today is because there's a direct attack - two things. It's a direct attack on the viability line, which is the point - right? - when the fetus can live outside the woman. And if that line is gone, then states can basically ban abortions. We don't know what the line is. Can they ban it all through pregnancy? Can they go 15 weeks? Can they go six weeks, which is what Mississippi's proposed also, and many other states have as well? So it's really - and what that is - what that means is overturning Roe and Casey and women not having the ability to make these decisions and preserve their health. You know, Mississippi has one of the poorest maternal death and maternal mortality - sorry, morbidity rates in the country. So you'd be forcing women to carry pregnancy to term in a very dangerous state.

MARTINEZ: Let's look ahead a little bit for a second here.

SMITH: Yeah.

MARTINEZ: If Roe v. Wade gets reversed, how quickly would a state be able to ban abortions?

SMITH: Well, Mississippi has already gone 15 weeks. Many others have gone six weeks. So those bans are in effect. Then there's a question of old bans on the books that banned abortion but that are not being enforced because of Roe v. Wade and Casey. So the question is, do those laws spring back into being and immediately ban abortions? And that's a question in a number of states across the country. There are also old cases that could be revived, and the antis will quickly do that and attempt to do that. And then, of course, legislatures can just pop in and ban abortions, you know, in a day and the governor could sign the law, you know, on the next day, as fast as they want.

MARTINEZ: So that would be immediately then, right? That's what we're talking...

SMITH: Yeah, yeah, sorry. Immediately (laughter).

MARTINEZ: So if someone is - wants an - yeah, OK. So if someone wants an abortion that day, it could not happen possibly.

SMITH: Yeah. Maybe the next day. Just...

MARTINEZ: OK.

SMITH: ...You know, to let them - yeah. So...

MARTINEZ: You know, while I have you here, Priscilla - yeah.

SMITH: I shouldn't laugh about it. It's really not a laughing matter. Yeah.

MARTINEZ: No, no, it is a very serious thing. But, you know, while I have you here, something I've been wondering about - when it comes to Mississippi and Texas, both of those states, in these instances, do not allow for an exception for rape or incest.

SMITH: Right.

MARTINEZ: What do you think that speaks to in terms of abortion rights and that debate in this country right now in 2021?

SMITH: Well, first of all, it's incredibly cruel, right? It's women in the toughest situations, in the most horrific ways of getting pregnant. There was an article in The New York Times yesterday about a woman who was raped repeatedly by her father, became pregnant, had an abortion and basically talked about it as saving her life. And I think that's a situation for many women in the country. And it also speaks to the court's attempt - the state's attempt, rather, just to cut through the current protections that preserve women's ability for - to have liberty, bodily integrity and equality in defining their lives. And that's...

MARTINEZ: Priscilla...

SMITH: ...Gone if Roe is gone.

MARTINEZ: Priscilla Smith of Yale Law School, thank you very much for taking the time.

SMITH: Thank you. Transcript provided by NPR, Copyright NPR.