Roe, Roe, and Roe Again.
Is the peril of Roe upon us?
On September 20th, Nina Totenburg reported for NPR that the Supreme Court decided to hear the Mississippi abortion law, Dobbs v. Jackson Women’s Health Organization, on December 1st. Mississippi’s law bans abortion after 15 weeks, well before the line demarcated by Roe v. Wade (which held states could not prohibit abortion until the third trimester).
This comes in the light of a recent shadow docket decision in which the high court refused to issue an injunction to Texas’ six-week abortion plan. The Texas case, however, was decided on procedural grounds. Crucially, the present case in Mississippi would likely be adjudicated on substantive grounds. It marks the first time the Supreme Court, with its current composition, would hear a case that may substantively challenge the authority of Roe.
The current court is unlikely to strike down the Mississippi law. Neil Gorsuch, Clarence Thomas, and Amy Coney Barrett are all ardent originalists. The three are susceptible to any argument that abortion remained open to be proscribed under the original public understanding of the Constitution. (Admittedly, an originalist defense of abortion would be an uphill battle.)
Alito is the Court’s most consistent conservative, seldom joining justices appointed by Democrats on hot button cases. Similarly, Brett Kavanaugh has praised Justice Rehnquist’s dissent in Roe.
Even if Justice Roberts joined Kagan, Sotomayor, and Breyer out of institutionalist concerns, it would still shape up to be a 5–4 decision in favor of upholding Mississippi’s law.
A New Cause
For decades, Republicans have been winning the judiciary narrative. With Antonin Scalia’s compelling speeches and acerbic wits, many conservatives have subscribed to the idea that the Supreme Court often acts as an extension of the political branches — a junior-varsity Congress.
When Trump ran in 2016, one of his most desired promises was a vow to remake the then “activist” Supreme Court. A promise made, promise kept. Most noticeably, Amy Coney Barrett’s nomination reminded Democrats of a painful flashback when Senate Republicans refused to give a hearing to Merrick Garland.
Democrats are not subservient — they protest when the Supreme Court hands down decisions with conservative consequences. Unfortunately, there has not been a case so invidious that every Democrat could point to as a ruinous ramification of a conservative Supreme Court. That may soon change.
The Mississippi case may soon be a rallying cry for Democrats. When Ruth Bader Ginsburg passed away last September, Democrats gained a new verve to exercise their votes. Ginsburg was an icon for Democrats, just as Scalia for Republicans. However, the Republicans have one additional bulwark. Whereas Democrats proliferated lament to numerous cases (E.g. Shelby County, Rucho, Citizens United), Republicans focused their shots on one issue: Roe, Roe, and Roe again.
After the Mississippi case is decided, Democrats may finally cite the judiciary as a reason to vote blue.
If the statute is indeed upheld, the Supreme Court’s decision would have immense ramifications for the 2022 midterm elections. The case would be decided within a year of the midterms — fresh enough to stay in voters’ minds. For most pro-choice Democrats, the right to abortion may become a cause to rally around. Just as Justice Ginsburg’s death energized voters in 2020, an invidious decision by the high court may just as likely rouse ballots in 2022.
A Litmus Test
For pro-choice Americans, all hope may not be lost. There are two non-originalist concerns that, for better or worse, may influence the decision in Dobbs.
First, stare decisis binds justices to precedents. For almost 50 years, Roe was the law of the land. Attempts to overturn it have all been met with the same response: you are too late. The opinion in Planned Parenthood v. Casey was co-written by three Republican-appointed Justices — David Souter, Anthony Kennedy, and Sandra Day O’Connor. As the Court then details, the precedent set in Roe is distinct from those set in other cases:
“Where, in the performance of its judicial duties, the Court decides a case in
such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation.”
Second, the Court may finally have to include politics in its decision calculus. As the tired Chief Justice Roberts watches his court’s approval rating drop in a disheartening fashion, he knows now is the time to build consensus. Supreme Court Justices always contended that the Court is not a political institution (which it shouldn’t be). Recently, four justices (Thomas, Barrett, Alito, and Breyer) have all made public appearances shutting down claims that the Court has ulterior political motives. There is little doubt that the Texas abortion decision lays at the heart of the high court’s unpopularity. While the Court is usually above the political fray, its members are keenly aware that its decision is only enforceable by a deferential public. If that reverence is lost, the judiciary itself may be in peril.
A New Future
Dobbs is no easy decision. On legal grounds, an argument can be made both for and against overturning Roe. Regardless of its decision, political consequences abound.
For the Court, its most politically suave (though perhaps not the most legally solid) move would be to issue as narrow of a decision as possible. Roe may have erred by taking a political issue into a legal one too soon. As Late Justice Ginsburg contended, Roe “seemed to have stopped the momentum on the side of change.”
The converse can be true. The majority of Americans now support abortion. By overturning Roe, the Court may be making the same miscalculation it once made when it decided the case.
Because the bullet can not be retracted once out of the barrel, the Supreme Court should decide Dobbs in light of, not despite, Roe.