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In Abortion Case, John Roberts Searches for Middle Ground

  • December 02, 2021

WASHINGTON — Much of the discussion of a Mississippi law that would ban abortions after 15 weeks of pregnancy has suggested that the Supreme Court faces a binary choice: it could strike down the law and fully reaffirm Roe v. Wade, as the law’s challengers want, or it could gut the idea that the Constitution protects abortion rights at all, as Mississippi has urged.

But during the Supreme Court’s oral arguments on Wednesday in a lawsuit challenging the law, Chief Justice John G. Roberts Jr. appeared to be exploring whether he could find something of a middle ground — one that would allow the court to uphold the Mississippi law without also proclaiming that the Constitution offered no protection of any right to an abortion.

Under Roe and a 1992 case that reaffirmed it, Planned Parenthood v. Casey, it is unconstitutional to ban abortions before “viability,” the point at which a fetus can survive outside the womb, which is usually about 24 weeks into pregnancy. On Wednesday, Chief Justice Roberts repeatedly returned to whether the cutoff could be earlier.

“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,” he said, and went on to question why 15 weeks would be an inappropriate line. “Because viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

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