Sotomayor Suggests Reversing Roe Will Abort the Court: ‘How Will We Survive?’

(CNSNews.com) – Justice Sonia Sotomayor suggested during oral arguments on Wednesday that the Supreme Court “won’t be able to survive” if it overturns its decisions in Roe vs. Wade and Pennsylvania vs. Casey and upholds a Mississippi law that prohibits abortion after 15 weeks into pregnancy, which is before the unborn child is “viable.”

“What hasn’t been at issue in the last 30 years is the line that Casey drew of viability,” said Sotomayor.

“You want us to reject that line of viability and adopt something different,” she told Mississippi Solicitor General Scott Stewart, who was arguing the case for his state.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible?” said Sotomayor.

“It’s what Casey talked about when it talked about watershed decisions,” she said. “Some of them, Brown vs. Board of Education, it mentioned, and this one have such an entrenched set of expectations in our society that this is what the court decided, this is what we will follow, that the—that we won’t be able to survive if people believe that everything, including New York versus Sullivan–

“I could name any other set of rights, including the Second Amendment, by the way,” she continued. “There are many political people who believe the court erred in seeing this as a personal right–as opposed to a militia right.

“If people actually believe that it is all political, how will we survive? How will the court survive?” said Sotomayor.

In Roe v. Wade, which was decided in 1973, the court ruled that abortion was a “right” that a state could not restrict before the unborn child was viable (meaning it could survive outside the womb). In the opinion written by Justice Harry Blackmun, the court said: “If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when necessary to preserve the life or health of the mother.” But in Doe v. Bolton, an opinion issued simultaneously to Roe, the court gutted the power it appeared to give a state to prohibit abortion after viability by defining “health of the mother” to mean anything a doctor said it was.

In Doe, the court stated that a doctor’s “medical judgment” about the health of a woman seeking an abortion “may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.”

In the 1992 case of Pennsylvania vs. Casey, the court upheld its decision in Roe v. Wade.

“Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” said the court’s opinion in that case.

“We also reaffirm Roe‘s holding that ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,’” the court said in Pennsylvania vs. Casey.

From 1973, the year Roe was decided, through 2017, there were 58,177,540 unborn babies aborted in the United States, according to the Guttmacher Institute.

Here is a transcript of Justice Sotomayor’s questioning of whether the court would able to survive overturning Roe during today’s oral arguments in Dobbs v. Jackson Women’s Health:

Justice Sonia Sotomayor: “Counsel, what hasn’t been at issue in the last 30 years is the line that Casey drew of viability. There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body, has been clearly set for–since Casey and never challenged.

“You want us to reject that line of viability and adopt something different. Fifteen justices over 50 years have—or I should say 30 since Casey have reaffirmed that basic viability line. Four have said no, two of them members of this court. But fifteen justices have said yes, of varying political backgrounds.

“Now the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices. The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we’re doing it because we have new justices on the Supreme Court.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.

“It’s what Casey talked about when it talked about watershed decisions. Some of them, Brown vs. Board of Education, it mentioned, and this one have such an entrenched set of expectations in our society that this is what the court decided, this is what we will follow, that the—that we won’t be able to survive if people believe that everything, including New York vs. Sullivan–I could name any other set of rights, including the Second Amendment, by the way. There are many political people who believe the court erred in seeing this as a personal right–as opposed to a militia right. If people actually believe that it’s all political, how will we survive? How will the court survive?”