Justice Sonia Sotomayor used her questions during a Supreme Court hearing Wednesday on abortion rights to urge her conservative colleagues to follow precedent and not politics in deciding the case.
She noted that the sponsors of the 2018 Mississippi abortion law, which would ban most abortions after 15 weeks of pregnancy, had said they were pushing ahead with the legislation and a court challenge "because we have new justices" on the Supreme Court.
Then-President Donald Trump successfully nominated three Supreme Court justices during his four-year term, giving the conservatives a 6-3 majority.
Sotomayor, who was nominated by then-President Barack Obama, said that tossing out the landmark rulings establishing abortion rights would tarnish the court's reputation and open the floodgates to other challenges to well-settled law.
“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," she said, while questioning Mississippi Solicitor General Scott Stewart.
Sotomayor called Roe v. Wade a watershed decision that created an "entrenched set of expectations in our society, that this is what the court decided, this is what we will follow."
Overturning Roe could have other far-reaching consequences as well, she warned.
"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 is a personal right as opposed to a militia right," she said. "If people actually believe that it's all political, how will we survive? How will the court survive?"
Stewart countered that there have been medical "advancements" since Roe was decided in 1973 and since the court's 1992 decision in Planned Parenthood v. Casey. That ruling has held that states can impose some restrictions on abortion as long as they do not present an "undue burden," but the procedure cannot be prohibited before fetal viability, generally considered to be 23 to 24 weeks into pregnancy.
Sotomayor asked Stewart what the medical advancements have been since Casey, and he said "knowledge and concern about such things as fetal pain" prior to 24 weeks.
Sotomayor accused him of using junk science, and said there's a "small fringe of doctors" who hold that view and it's "not one well-founded in science at all."
"How is your interest anything but a religious view?" Sotomayor later asked. "When does the life of a woman and putting her at risk enter the calculus?"
She said "forcing women who are poor" to proceed with unwanted pregnancies puts them "at a tremendously greater risk of medical complications and ending their life, 14 times greater to give birth to a child full term than it is to have an abortion before viability. And now the state is saying to these women, we can choose not only to physically complicate your existence, put you at medical risk, make you poorer by the choice, because we believe what?"
Stewart said a woman's interest "is there the entire time. All the interests are there the entire time."
The court Wednesday appeared prepared to uphold the Mississippi law, which would represent a dramatic break from 50 years of rulings. But it was unclear after the arguments whether the court would take the additional step of explicitly overturning its abortion precedents, including Roe v Wade.
It's unclear when the court will rule.