The future of Roe v. Wade

I’m pretty sure I mentioned in a recent quick hit that I don’t make much of the liberal argument not to worry about the status of Roe v. Wade.  Paul Waldman with an excellent post on why Roe is in serious trouble:

If you listen to some pro-choice activists, Roe is still safe, for now. As Julie Rikelman of the Center for Reproductive Rights recently told New York magazine, “We definitely need to be concerned, but we do not believe that Roe v. Wade would be overturned at this point in time.” The idea is that not only are the justices reluctant to overturn the Court’s precedents, but they’re also attuned to public opinion and political reality, and understand what upheaval would result if they overturned Roe. Ruth Bader Ginsburg said as much in aninterview last year: “This court is highly precedent bound. And it could happen, but I think it’s not a likely scenario.”

I suspect that pro-choice groups may be taking that line in part to persuade the justices of just that argument. Unfortunately, it’s much more likely that by the time we get to the end of Donald Trump’s term,Roe will be history…

That’s three votes against Roe [Thomas, Alito, Scalia replacement]. Now let’s imagine that at some point in the next four years, Ginsburg (age 83), Breyer (78) or Kennedy (80) leaves the Court. Their replacement would also be all but guaranteed to be a vote to overturn Roe. That’s four. Which means it all comes down to John Roberts.

No one knows for sure how he’d rule. On one hand, Roberts is extremely well-attuned to the politics of the moment and reluctant to issue rulings that would cause political chaos and undermine the authority and legitimacy of the Court. He is surely well aware that in polls the idea of overturning the decision is usually opposed by at least 60 percent of the public and sometimes more.

On the other hand, Roberts was nurtured in the Reagan Justice Department, where he participated in many efforts to restrict abortion rights. While he made all the right noises about Roe being settled precedent during his confirmation hearings in 2005 (as every conservative justice does), he has never joined the pro-choice side of a decision before the High Court. Earlier this year, he dissented in a case that struck down a set of absurd restrictions Texas had placed on abortion clinics, a classic “TRAP law” (Targeted Regulation of Abortion Providers), in which the state places regulatory demands that are all but impossible to satisfy on abortion clinics as a way of driving them out of business.

That Texas law was so ridiculous that if you believed it was constitutional — as Roberts, Thomas, and Alito did — then there’s essentially no restriction on abortion rights you’d find unduly burdensome. Which suggests that Roberts will be perfectly ready to discard Roe if he gets the chance. [emphases mine]

But that case also suggests something else: the conservatives on the Court, joined by their new colleagues (if Trump gets one more appointment) could effectively overturn Roe without actually overturning Roe. They could claim that Roe still stands while gutting the standard set out in Planned Parenthood v. Casey, which said that states can’t place an “undue burden” on a woman’s right to choose. They could say that “heartbeat” bans like Ohio’s are fine, as are TRAP laws that make it impossible to open an abortion clinic, as are lengthy waiting periods or requirements that doctors lie to their patients and tell them that if they have an abortion they’ll go mad and die from cancer. With five anti-abortion votes, they could create the functional equivalent of a world without Roe, where abortion is all but illegal in states controlled by Republicans but legal in states controlled by Democrats.

Yes, yes, and yes.  For one, in upholding Texas’ TRAP laws, Roberts has very much revealed where he really stands on abortion.  This laws are a transparent affront to Roe and Casey.  We’ve also seen that Roberts has a history of essentially gutting the meaning of earlier Court rulings while pretending that he’s actually not overturning precedent.  So, assuming one of the three Waldman mentions is replaced in the next four years, there is every reason to believe there is a 5-vote majority to functionally oveturn Roe v. Wade and Casey, regardless of what the rhetoric of the opinion says.  And, I think there’s a good chance this is precisely what will happen.

For women looking to be in control of their own reproduction, this is, of course, bad news.  And I don’t think it will actually do all that much to change abortion rates.  What I do suspect, though, that there would be a huge political backlash that benefits Democrats.  It’s one thing to have increasing regulations, but clearly many Republican state legislatures will pursue outright bans or their equivalent.  Many essentially pro-choice Republicans (and there’s lots) who have ignored this issue because it is not a legislative issue will no longer be able to do so because there votes will determine elected officials who will either take away, or preserve, abortion rights.  If this course of events comes to pass, there’s strong reason to believe the Democrats will electorally benefit.  That said, here’s hoping to great health for Breyer, Ginsburg, and Kennedy.


About Steve Greene
Professor of Political Science at NC State

One Response to The future of Roe v. Wade

  1. R. Jenrette says:

    The Republicans have been telling their anti-choice base for years that they will act to overturn Roe V Wade. Now they have no excuse not to as the GOP controls all three branches of our government.
    Trump says he wants to repeal it and give it to the states to decide. Why should he care? Trump women and their friends can hop on a plane and go anywhere in the world for an abortion if they need it. Since he doesn’t care, he’ll let Pence and Co. have their way.
    Roe V Wade is done. Supporters will have all we can do to support Planned Parenthood after federal funding is withdrawn, where that group can function legally.

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