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Yes, Roe really is in trouble

Roe v. Wade has survived for decades because of luck. That’s about to change.

Annual March For Life Rally Winds Through Washington DC
An anti-abortion activist tries to block the signs of abortion rights activists in front of the the US Supreme Court during the 2018 March for Life on January 19, 2018, in Washington, DC. 
Alex Wong/Getty Images

It’s been a bad few weeks for supporters of reproductive freedom.

On Tuesday, the Alabama legislature passed one of the most restrictive abortion bills in the country, banning the procedure with no exception for rape or incest. Last week, Georgia passed a so-called “heartbeat” bill that would prohibit an abortion once a fetal heartbeat can be picked up — the fourth such bill to be passed in 2019.

These laws will surely be challenged and make their way to the Supreme Court. Once there, reproductive rights advocates worry that the newly empowered conservative majority, entrenched by President Trump in the wake of Justice Anthony Kennedy’s retirement, will use the opportunity to finally strike down Roe v. Wade.

But not everyone thinks that’s necessarily what lies ahead. The thinking goes that these bills are so extreme that they seem almost designed to be struck down by the high court — and that is of a piece with how the Republican establishment views abortion, which it basically sees as more effective at ginning up the base when it remains a live issue.

The Niskanen Institute’s Will Wilkinson, a generally astute writer, said of the Georgia bill, “it seems pretty clear to me [the authors the bill] want it to be overturned.” And why would Republicans want that? “They want to keep their base mad and run on it forever, but never catch the car.” Following Kennedy’s retirement in 2018, Slate’s William Saletan explained “Why Republicans don’t actually want to repeal Roe.” Kathleen Parker of the Washington Post, immediately before Trump’s nomination of Brett Kavanaugh, asserted that no Court majority would want to overrule Roe and “be credited with upending settled law and causing massive societal upheaval.”

It’s not an outlandish claim. After all, five Republican nominees were part of the original Roe majority, and the decision has now survived more than two decades with a Supreme Court median vote nominated by anti-abortion presidents. It seems plausible that Republican elites would rather have Roe on the books to rally the rank and file than pay the political price of overruling it.

But this argument fails to withstand serious historical scrutiny. The survival of Roe was not the inevitable product of some master Republican plan, but a contingent series of flukes and historical accidents. And just this week, the Court’s conservative majority showed its willingness to overturn decades-old precedent. Roe still being law in 2019 represents remarkable good luck for supporters of reproductive freedom. With Republicans capturing the Senate in 2014 and winning the presidency in 2016, and Trump replacing Kennedy in 2018, this luck has almost certainly run out.

The path to today’s abortion politics

The idea that the Republican Party doesn’t really want to repeal Roe v. Wade — that the landmark abortion case is more useful to it as a mobilizing issue — rests on Supreme Court decisions that were the product less of political scheming and more of happenstance and luck.

Roe was in serious jeopardy as early as the late ’80s, as the Reagan administration took the position that Roe should be overruled and states passed envelope-pushing statutes to generate test cases. In 1989, the Court issued a ruling in Webster v. Reproductive Health Services, which considered a Missouri law that defined life as beginning at conception and declared that “unborn children have protectable interests in life, health, and well-being.”

But Roe survived the first major attempt to dismantle it. Chief Justice William Rehnquist (who dissented in Roe) tried to assemble a coalition for effectively ending Roe but fell one vote short. The result was an opinion that expressed hostility to Roe without changing the legal status quo.

The roadblock was Justice Sandra Day O’Connor, who in a concurrence insisted that the Missouri statute did not require the Court to consider whether Roe was correctly decided because the “fetal personhood” language did not have concrete legal meaning.

Roe survived, but the threat was clear. “For today, the women of this nation still retain the liberty to control their destinies,” Justice Harry Blackmun, Roe’s author, famously wrote in his dissent. “But the signs are evident and very ominous, and a chill wind blows.”

By 1991, the Court’s two liberal lions, William Brennan and Thurgood Marshall, were gone, replaced by nominees of President George H.W. Bush. Combined with the four apparent anti-Roe votes in Webster, this seemed to make overturning Roe a question of “when,” not “if.”

The apparent vehicle was the 1992 case Planned Parenthood v. Casey. The case involved a Pennsylvania statute that imposed several restrictions on abortion that the Court’s previous applications of Roe had deemed unconstitutional. The American Civil Liberties Union’s Kathryn Kolbert, who argued the challenge to the Pennsylvania’s statute in front of the Court, essentially assumed that Roe was doomed and largely dedicated her argument to urging the Court to directly face the question of whether Roe was still good law, rather than continuing to dodge the question as it had in Webster.

But the expected ruling didn’t happen. After initially voting in conference to overrule Roe, Justice Anthony Kennedy ended up collaborating with fellow Republican nominees Sandra Day O’Connor and David Souter to craft a compromise upholding Roe.

The essential holding of Roe — that the 14th Amendment protects the right to choose to have an abortion prior to fetal viability — was explicitly reaffirmed. But Roe’s “trimester framework,” which forbade virtually any regulation of first-trimester abortions, would be replaced with the “undue burden” test O’Connor had long advocated.

Under the undue burden test, which basically held that a law could not place an undue burden on someone seeking an abortion, the Court struck down Pennsylvania’s requirement that a married woman inform her husband before obtaining an abortion. But it upheld the statute’s other regulations, including a mandatory 24-hour waiting period and a requirement that minors obtain the consent of at least one parent.

Casey provided substantially less protection for reproductive freedom than Roe but was still greatly preferable to overruling it altogether. It is this Casey compromise, crafted by the moderate appointees of Republican presidents, on which the idea that the GOP doesn’t really want to repeal Roe largely rests.

The center-right compromise on Roe

Was this what Republican elites wanted all along? There is not, in fact, any reason to believe so. If one looks at the circumstances that brought each of the Casey three to the Court, it’s clear that Casey wasn’t the product of clever scheming by Republicans.

O’Connor was Ronald Reagan’s first Supreme Court nominee because Reagan had promised to nominate the first female Supreme Court justice. While O’Connor had displayed some moderation on abortion as a state legislator in Arizona, she was the most conservative woman who was considered a viable nominee. She wasn’t chosen because of her relative moderation on abortion. (Indeed, had Gerald Ford nominated a woman instead of John Paul Stevens in 1975, it is highly likely that Reagan would have chosen an anti-Roe conservative as his first nominee.)

Kennedy was confirmed to the Court only because a Democratic Senate rejected Reagan’s first choice, Robert Bork, an icon in conservative legal circles whom Republican elites certainly wanted to be confirmed. Bork, who labeled Roe an “unconstitutional decision” in congressional testimony in 1981, unquestionably would have voted to overrule it. Had Reagan nominated another orthodox conservative without Bork’s extensive history of inflammatory public comments in 1987, it is overwhelmingly likely Roe would have been dead in 1990. (His next pick after Bork dropped out, Douglas Ginsburg, was also forced to withdraw amid controversy over his personal conduct, including his admission that he had smoked marijuana several times.)

As for Souter — long the bane of conservatives for being a moderate who got on the Court under a Republican — he was hardly the product of a conscious plan to preserve Roe. As Jan Crawford reported in her book about the Roberts Court, the Souter choice emerged out of odd intra-administration conflicts; most notably, some conservatives in the Department of Justice torpedoed the potential nomination of orthodox conservative Ken Starr because he disagreed with them on an obscure federalism issue. Bush then went to Souter in large measure because two New Hampshirites in his inner circle — Chief of Staff John Sununu and Sen. Warren Rudman — assured him that Souter was a reliable, solid conservative. They were wrong, but Bush certainly wasn’t trying to select a liberal.

It’s worth noting that if Bush had had a secret plan to preserve Roe, he likely would not have nominated Clarence Thomas in 1991, a staunch conservative widely and correctly perceived to be anti-Roe. It’s also worth noting that in 1991, there was nothing in the record of Anthony Kennedy — who joined Rehnquist’s opinion in Webster, not O’Connor’s more moderate concurrence — to suggest he supported upholding Roe. That means that irrespective of Souter’s position on the question, Kennedy voting against Roe, as his Webster vote suggested, would have made Thomas the fifth and decisive vote.

Now, it’s fair to say that during this period, Republican presidents were not single-minded about Roe. But in the years since, abortion has become nothing less than a litmus test. The rise of the Federalist Society, which was founded in 1982 and became steadily more influential over time, was in large measure to ensure that another accident like Souter didn’t happen.

The fact remains, however, that none of the post-1980 Republican justices were selected for the purpose of preserving Roe. And had Reagan simply gotten his first choice in 1987, Roe would have been dead.

The fate of Roe

Since 1992, Casey has been the controlling precedent on abortion. Especially after O’Connor left the Court in 2006, the case has allowed states more and more leeway to regulate abortion, although in 2016, a Texas law that would have caused more than half of Texas’s abortion clinics to close finally went too far for Kennedy.

With Kennedy no longer on the Court, the situation for reproductive rights is about to get worse; the only question is how much worse.

It is true that ending Roe would be unpopular, which is an argument pundits like Saletan and Parker have made about why Republicans won’t let the law fall in the end. But it would be odd indeed to use this fact to conclude that therefore Republican elites don’t want it to happen. Republican efforts to repeal the Affordable Care Act and enact Trump’s tax cuts were enormously unpopular, but they did the latter and were one vote away from the former anyway.

To see what Republicans really think about abortion, just look at the two-track strategy of doing as much as possible to limit access to abortion under existing law while teeing up vehicles to get Roe overruled. Ohio is an example of a state that has pursued both approaches. In addition to the “fetal heartbeat” bill that directly challenges Roe, it has also targeted abortion clinics with onerous legal restrictions, with the result that the number of abortion clinics in the state has been reduced from 45 in 1992 to 10 today.

In addition, the idea that Roe being overturned will mean that evangelicals will no longer have the issue to rally around is puzzling. If Roe is overruled, the result would be conflicts over abortion laws in most states as well as Congress. And preserving the movement’s legislative victories would still require maintaining control of the Supreme Court.

The only hope for Roe, then, lies with Chief Justice Roberts, now the Court’s median vote on the issue. Could Roberts, who disappointed conservatives by casting the deciding vote to uphold most of the Affordable Care Act, cross them again by saving Roe?

This is highly unlikely. NFIB v. Sebelius, the vote that saved Obamacare, was a rare exception in Roberts’s track record, and even in that case, he inflicted significant damage on the statute’s expansion of Medicaid. From eviscerating the Voting Rights Act to gutting campaign finance law, Roberts has generally sided with longstanding movement conservative priorities even when the results are unpopular. On abortion, he voted with the minority in the 2016 case to uphold the Texas anti-abortion law, which, if left in place, would in itself effectively render Roe a nullity by allowing states to stop abortion clinics from operating.

It is true that Roberts has often tried to slowly dismantle precedents he dislikes rather than overruling them immediately. The Court may well take the judicial obfuscation route in dismantling Roe, starting with cases that give states more leeway to restrict abortions instead of explicitly announcing that it is overruling Roe immediately, giving conservative policy victories without the political costs. The Court is likely to try to put off consideration of the laws (like Georgia’s and Alabama’s) that most directly threaten Roe until after the 2020 elections.

But the willingness to overturn decades-old precedent is there. Just this week, the Court’s conservative majority ruled, in Franchise Tax Board of California v. Hyatt, to throw stare decisis out the window and overrule a 1979 decision on whether a state could be sued in another state’s courts — not because the decision had proven unworkable or any relevant facts had changed but because a bare majority of the Court would have ruled differently had they heard the case in the first instance.

The decision had nothing to do with abortion — and everything to do with it. In a dissenting opinion, Justice Stephen Breyer sent up a warning flare: “Today’s decision can only cause one to wonder which cases the court will overrule next.”

However the Court describes what it’s doing to Roe, in short order, states will have the tools necessary to make abortion almost or entirely inaccessible for tens of millions of Americans. Eventually, the Court will have to face Roe head on, and it’s overwhelmingly likely that it will overrule Roe if Roberts is the median vote — and a near certainty if a Republican president can replace Justice Ruth Bader Ginsburg or Stephen Breyer.

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