Will Roe Fall?

America, prepare yourself for the most intense, emotional Supreme Court case in a generation. Yesterday, the Supreme Court granted review in Dobbs v. Jackson Women’s Health Organization, a case challenging a Mississippi ban on abortions after fifteen weeks except in cases of medical emergency or severe fetal abnormality. 

Why will this abortion case be more intense than any in recent memory? Because, as Ed Whelan has written repeatedly in National Review, “The case provides an excellent vehicle for overruling Roe.” In fact, Whelan believes this might be the “best opportunity the Supreme Court will ever have” to end the Roe regime. He outlines four main reasons. 

First, because SCOTUS now has six conservative justices, it can overrule Roe by “supermajority.” 

Second, because the conservative judges are relatively young, the ruling promises to be “durable.” 

Third, a ruling early in Biden’s presidency would grant states time to react to the decision before the next presidential election. 

And fourth, the Mississippi law is relatively popular: “Only 29% of Americans think that abortion should generally be allowed after the first three months of pregnancy (13 or so weeks).”

I largely agree with Ed’s analysis. There are very good reasons why this cert grant is causing the pro-life movement to surge with hope and the pro-choice world to react with fear. But the most compelling reason for the emotional reaction is simply this—if the court didn’t want to do something dramatic with abortion jurisprudence, it could have simply left the case alone. It could have denied cert and let the case die.

It takes only four justices to agree to hear a case, but four justices rarely accept cert on truly significant cases unless they feel confident they have at least a fifth vote for their preferred position. That doesn’t guarantee an outcome, of course. In fact, there were those who thought that the Republican-nominated majority Supreme Court accepted review in Planned Parenthood v. Casey to overturn Roe. Instead, SCOTUS reaffirmed the right to an abortion. 

If four justices are confident enough to take the case, what are they confident about? What is the likely outcome? I foresee three broad possibilities, and I’ll take them in order from least-likely to most-likely:

The court could choose to end pro-life hopes by affirming the Casey standard and striking down the Mississippi law. This isn’t an impossible result, but it would be surprising—perhaps even shocking. It would essentially chisel into stone constitutional protections for pre-viability abortions, and it would end the judicial abortion wars for the foreseeable future. Such a ruling, however, would also contradict the expressed judicial philosophies of a majority of the Court. 

The court could fulfill pro-life hopes by reversing Roe and Casey and restoring the abortion question to the political process. Such an outcome would be consistent with originalism/textualism. After all, the Constitution is silent on abortion, and to the extent there’s an originalist argument that the Constitution speaks to the issue at all, it weighs in favor of granting equal protection of the law to unborn children. 

But a number of the justices (including Chief Justice John Roberts) are also institutionalists. They respect precedent. As my Advisory Opinions co-host Sarah Isgur and I point out all the time on our podcast, judges aren’t philosophical robots who spit out judicial opinions on command. They’re human beings, and many of these human beings are wary of causing immense cultural and political turmoil.

Remember that only one justice on the court, Clarence Thomas, has clearly and unequivocally signaled since he ascended to the bench that he’d overturn Roe. Perhaps four other justices share his conviction. We don’t know. It would be foolish to assume they do.

Thus, we shouldn’t be surprised if SCOTUS doesn’t settle the abortion question with Dobbs. The most likely outcome (I believe) is a decision that upholds the Mississippi law and thus effectively introduces a new standard that permits greater abortion regulation without explicitly permitting abortion bans. 

And what would that standard be? Mississippi’s cert petition argues that its act “appropriately regulates inhumane procedures” and asserts that unborn children are capable of “detecting and responding to pain by 10-12 weeks after the last menstrual period.” 

The court could punt the case back to the lower court for further factual development about fetal pain. It could construct a different standard entirely. This is a stretch, but given that more than 90 percent of abortions occur before 15 weeks, it could perhaps adjust the “undue burden” test to state that even pre-viability restrictions imposed after the first three months of pregnancy do not significantly burden the abortion right. 

This legal analysis is rather calm and dry. The political rhetoric leading up to the oral argument and the decision in the case will be anything but. And the decision is likely to come down in June 2022—only a few short months before the midterm elections. 

While I don’t know the outcome of the case, I do know beyond doubt that the political and cultural environment will verge on the hysterical. We may face an increase in political temperature that rivals the post-election challenge in 2020. There will be Democrats who don’t just threaten court-packing if the Court overrules Roe, they’ll promise it. 

And with each escalating threat and each potentially violent protest, I’ll keep one eye on the future and one eye on the past. The present abortion crisis was avoidable. It’s the result of judicial overreach in Roe so plainly obvious that even Ruth Bader Ginsburg once lamented its scope.

In a 1992 law review article, Ginsburg called Roe a “breathtaking” decision and wondered whether a “more measured” ruling would have been appropriate. 

The Texas law Roe challenged permitted abortion only when it was a “lifesaving” procedure. “Suppose the Court had stopped there,” she wrote, “rightly declaring unconstitutional the most extreme brand of law in the nation and had not gone on…to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the 20-year controversy we have witnessed?”

The answer is no. We would not have had the (now) almost 50-year controversy that has distorted and debased our national politics. Roe is a classic example that politics is about outcome and process, and when proper process (in this case, statutes democratically enacted in state legislatures) is abandoned in the pursuit of a particular outcome, then our politics can be destabilized in unpredictable ways. 

In this context, Roe represented an important cultural and political moment even beyond the immense gravity of the underlying issue—whether states could protect unborn human life. It demonstrated to our warring political tribes that there was a path to victory in the culture wars without the necessity of legislative debate and political compromise. Win the presidency, nominate the judges, and transform the nation. 

Want to know why our national legislature is little more than a “parliament of pundits” (to steal Jonah’s fantastic phrase)? Look in part to Roe. 

Roe is wrong on the merits. There is no fair reading of the Constitution that can find a right to an abortion in its text. But Roe was also the worst kind of wrong—it was both unjust in outcome and destabilizing to our nation. Can that bell be unrung? Can a constitutionally appropriate ruling re-stabilize our democracy? After a period of convulsive outrage, would the necessity of legislation re-ignite democratic debate?

I genuinely don’t know the answer. But that’s a question for our political branches to decide. The court should stick to its knitting. The Constitution plainly does not protect a right to an abortion. The court should say so, and let the chips fall where they may.

One last thing …

This has been a heavy newsletter. Let’s lighten the mood a bit. It’s been way, way too long since I’ve closed with any Grizzlies content. Tomorrow night they take on the San Antonio Spurs in the first game of the Western Conference play-in tournament. Win and they survive to play another day. Lose and they go home. But whatever happens, we can and should pause and pay tribute to the greatness of Ja Morant. The Grizzlies’ future is bright indeed: