After the U.S. Supreme Court finally decided to deal with Mississippi’s sharply restrictive new abortion law, I wrote about the possible implications at New York:
After months of mysterious uncertainty, the U.S. Supreme Court has agreed to review a direct challenge to Roe v. Wade presented by a ban on abortions prior to 15 weeks of pregnancy, as enacted by the State of Mississippi. And the Court left no ambiguity about its willingness to get back to the basics of the constitutional law governing abortion by limiting its review to the question of “whether all pre-viability prohibitions on elective abortions are unconstitutional.” That’s the question that was answered affirmatively in 1973 in Roe and again in 1992 in Planned Parenthood v. Casey, the two Supreme Court precedents that have restrained eager Republican-controlled state legislatures and an increasingly conservative federal judiciary from eroding or abolishing reproductive rights.
Oral arguments in Dobbs v. Jackson Women’s Health Organization will occur in the next Court term this fall, which means a decision is likely in the spring or early summer of 2022. The early betting is that the six justices placed on the Court by the strongly anti-abortion presidents George W. Bush and Donald J. Trump will finally take the leap to seriously revise, if not reverse, a woman’s right to choose abortion prior to fetal viability. The chronically pessimistic progressive legal analyst Mark Joseph Stern may be right this time around:
“This action suggests that the conservative majority is no longer interested in gradually eroding abortion rights until they are, in reality, nonexistent. This strategy has guided the anti-abortion movement for decades. It has resulted in laws that shutter abortion clinics under a bogus pretext, compel doctors to read anti-abortion propaganda, force women to undergo ultrasounds and waiting periods, and forbid abortions for specific reasons, like fetal disability. After the confirmations of Justices Brett Kavanaugh and Amy Coney Barrett, the conventional wisdom dictated that the Supreme Court would begin to uphold these laws, chipping away at Roe until it became a hollow promise. But the new conservative majority is not waiting for these half-measures to reach the court; with Dobbs, it has gone for the jugular. Roe itself is on the table.”
Under this reading, the confirmation of Amy Coney Barrett flipped a Court that, as recently as 2020, was willing to invalidate a Louisiana law restricting access to abortion clinics on the grounds that it violated Casey’s standard prohibiting laws that placed an “undue burden” on women choosing pre-viability abortions. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch are almost certain votes to abandon Roe and Casey, while Chief Justice John Roberts and Justice Brett Kavanaugh have appeared to be more cautious about defying so long-standing a set of precedents.
But with only three justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) being firmly committed to reproductive rights, and with virtually the entire Republican Party (not to mention its Federalist Society legal wing) opposing them, the time for a showdown may have now arrived. Indeed, among conservatives, the main difference of opinion is between those who favor a return to the pre-1973 status quo ante, in which the states (or, in theory, Congress) will determine abortion law, and those embracing the more radical doctrine of fetal “personhood” (which would have the effect of requiring a constitutional amendment to legalize abortion anywhere).
But before conceding defeat on the Court, reproductive-rights advocates should recall that we’ve been here before. In 1992, when SCOTUS accepted the Pennsylvania case that became Casey, it was widely expected that Roe was about to fall, in no small part because Thomas had just joined the Court. Indeed, we now know then–Chief Justice William Rehnquist circulated a draft opinion overturning Roe that was tentatively supported by five justices. But Justice Anthony Kennedy changed his mind and joined fellow Republican appointees Sandra Day O’Connor and David Souter in affirming Roe’s viability standard, while replacing its trimester scheme with the “undue burden” test for pre-viability restrictions that is still in place.
Could that (i.e., a reframing rather than a reversal of the right to choose) happen again? It seems unlikely, but there is one straw in the wind that suggests it’s not necessarily a done deal. Breyer, Sotomayor, and Kagan did not choose to publish dissents to the order to hear Dobbs, which one might have expected if a conservative majority to reverse Roe is in place, given the unquestioned unconstitutionality of the Mississippi law under the existing precedents. It remains possible that Roberts and Kavanaugh, fearing an anti-Court outcry among women everywhere, could be persuaded to reaffirm the viability standard yet again, perhaps alongside some new leeway for less fundamental state restrictions. In other words, the 1992 saga could be replayed with a similar result. Short of a change of Court membership during the next year, that may be the abiding hope of reproductive-rights advocates. But they’d best focus most of their efforts on formulating a strategy for restoring the right to choose via intense political warfare in the states.