Thinking ahead to what may happen at the U.S. Supreme Court in June or July, I began thinking of a possible outcome no one is talking about. So I talked about it at New York:
All signs point to the reversal of Roe v. Wade by the U.S. Supreme Court when the decision in Dobbs v. Jackson Women’s Health Organization comes down, likely at the end of the current Supreme Court term. President Donald Trump had explicitly promised to deliver the reversal of Roe; when he managed to appoint three justices very carefully vetted by the conservative legal movement, it seemed it would only be a matter of time before the deed was done. Then in May, the Court accepted a case explicitly designed by the State of Mississippi as a frontal challenge to Roe. Oral arguments in December showed no wobbling at all among the five conservative justices presumed to be strongly inclined against legalized abortion, and at best pro forma equivocation by Chief Justice John Roberts. At the state level, there’s been frenetic legislative activity anticipating the end of a federal right to an abortion. It certainly seems that conservatism’s long-awaited judicial counterrevolution has arrived.
It’s not the first time Roe looked cooked, however. Thirty years ago, the Court was widely expected to gives states the green light to restrict abortions in Planned Parenthood v. Casey. There had even been a preliminary vote in favor of an opinion from Chief Justice William Rehnquist (one of the original dissenters in Roe) that would have done so. But Justice Anthony Kennedy changed his mind and joined “centrist” Justices Sandra Day O’Connor and David Souter, resulting in a decision that allowed certain state-imposed abortion limitations while actually reaffirming the constitutional protection of pre-viability abortions.
To be clear, it’s unlikely that this “betrayal” of the anti-abortion cause will happen again. For one thing, with the occasional exception of Roberts, there aren’t any “centrists” left among the six current justices appointed by Republican presidents. For another, if the conservatives on the Court were inclined to move slowly and incrementally in eroding reproductive rights, they could have surely arranged to accept a case involving state restrictions that fell short of an outright ban like Mississippi’s, and that didn’t raise expectations among anti-abortion activists that would soon be dashed.
But what would happen if all the Court watchers and legal experts are wrong?
Since the idea of the Court flatly striking down the Mississippi law is hard even to imagine, let’s hypothesize a decision that upholds the state’s ban on abortions after 15 weeks specifically, under some revision of either Roe’s “viability” standard or Casey’s “undue burden” test, rather than a decision that generally affirms state prerogatives to regulate abortion, as in the days before Roe. If that were to happen, the new lines the decision draws would determine how many existing or potential state laws restricting abortion might survive judicial scrutiny. The federal constitutional right to choose would be weakened, but not abolished.
Some observers might treat such an outcome as a sort of deferred reckoning, which was a common reaction to Casey, particularly among pro-choice folk relieved that the viability standard had survived but worried about the approved state restrictions. Obviously, if the Court approves Mississippi’s ban on all abortions after 15 weeks of pregnancy, with no exceptions for rape or incest, that would be a rather large step back from Roe and Casey; it could also lead to additional erosions of reproductive rights in future cases. But given the expectation of a more sweeping decision, pro-choice advocates might at least privately be pleased that the vast majority of abortions occurring today would still be legal and (at least for the moment) constitutionally protected.
For exactly the same reasons, anti-abortion advocates and their Republican allies might be deeply disappointed and even angry if Roe survives again, even in an attenuated form. The justices’ majority and concurring opinions would be examined carefully to identify culprits and backsliders. If (as would be likely) Roberts were one of the temporizers, his past betrayals of conservatism (particularly the Obamacare decisions) would be hashed over again with bad intent. If Kavanaugh joined him, we’d be treated to psychobabble about his need to prove his feminist critics wrong.
But if Amy Coney Barrett failed to answer the call to gut Roe on her first opportunity to do so, the effect on those who so avidly supported her nomination and confirmation could be truly traumatic. In a recent examination of Barrett’s “originalist” judicial philosophy, Margaret Talbot suggested that those who view the courts simply as instruments for their right-wing religious and political views might revolt against the entire conservative legal movement if she lets them down:
“Lately, some right-wing Republicans have, like Josh Hawley, been making it known that they don’t see much use for the originalists on the Court if they don’t deliver Roe a fatal blow. Rachel Bovard, a columnist for the Web site the Federalist, recently wrote, ‘If the outcome of Dobbs is indeed a hedge that splits the Court’s conservatives — or, to put it more bluntly, if the conservative legal movement has failed to produce Supreme Court Justices who are comfortable overturning two outrageously constitutionally defective rulings on abortion — we will be left to justifiably wonder what the whole project has been for.’”
Such a disappointment would not reflect well on Donald Trump’s ability to produce what conservative Christians want, either. And that reliability is a key component of his past, present, and presumably future position as leader of the Republican Party and a MAGA movement devoted to restoring an orderly patriarchal society in which the right to choose abortion is just another “woke” nostrum to be mocked and repudiated.
The stakes are undoubtedly high in Dobbs, and not just on the central question of abortion rights. While the Court is expected to deliver a decision that deepens the divide between blue and red America, there’s a chance it could produce something more complicated, like a civil war on the right.