clock menu more-arrow no yes mobile

Filed under:

How the Supreme Court could overrule Roe v. Wade without overruling Roe v. Wade

Dobbs v. Jackson Women’s Health Organization is an existential threat to Roe — even if the Court doesn’t use the words “Roe v. Wade is overruled.”

Supporters of abortion rights demonstrate outside the US Supreme Court in Washington, DC, on November 1, 2021.
Mandel Ngan/AFP via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Dobbs v. Jackson Women’s Health Organization, which the Supreme Court will hear on Wednesday, is the single greatest threat to abortion rights since Roe v. Wade was handed down in 1973. It involves a Mississippi law that prohibits nearly all abortions after the 15th week of pregnancy, a law which violates the Supreme Court’s holding in Planned Parenthood v. Casey (1992) that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”

“Viability” refers to the moment when a fetus can live outside of the womb, which typically occurs around the 24th week of pregnancy. (It’s worth noting that, while Mississippi’s law is often described as a “15-week” ban, the law provides that the 15-week clock starts ticking on “the first day of the last menstrual period of the pregnant woman.” So, in practice, the law functions more like a 13-week abortion ban.)

Dobbs is also the first case explicitly asking the Court to overrule Roe since Justice Amy Coney Barrett’s appointment gave Republican appointees a supermajority on the Supreme Court. It’s also being argued three months after the Court allowed Texas’s SB 8, which bans abortions after the sixth week of pregnancy in that state, to go into effect. There is every reason to believe that Dobbs ends disastrously for abortion rights.

But it is far less clear that the Court will use five significant words — “Roe v. Wade is overruled” — when it hands down its decision in Dobbs.

For one thing, such a decision would be procedurally improper. When the Court announces that it will give a case full briefing and oral argument, it also announces which legal question it intends to resolve in that case. The question presented by Dobbs is not “Should Roe v. Wade be overruled,” it is a slightly narrower question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”

For another thing, anti-abortion advocates have a long history of coming up with clever legal rules that would allow states to ban abortions, even if Roe nominally remained good law.

In Whole Woman’s Health v. Hellerstedt (2016), for example, Texas imposed onerous architectural requirements on abortion clinics and required abortion providers to obtain a difficult-to-acquire credential. Had the Court upheld that Texas law — and there are five justices on the current Court who almost certainly would have voted to uphold it — states might have banned abortions by imposing increasingly expensive regulations on clinics. Perhaps Texas could require every abortion clinic to be made out of solid gold.

So if the justices want to explicitly overrule Roe v. Wade, they can do that. But if they would prefer to abolish the constitutional right to an abortion while maintaining the illusion that Roe has not been overruled, then there are plenty of ways to do that as well.

Ultimately, a decision gutting Roe while leaving it nominally in place would have more or less the same effect as a decision explicitly overruling it. On the day Dobbs is handed down, in other words, supporters of abortion rights should not be sanguine — and Supreme Court journalists should not report that Roe has survived — just because the decision is not explicitly overruled.

The Court could very well hand down a disingenuous decision that burns the constitutional right to an abortion to the ground, while also pretending to preserve some part of Roe.

Why would the justices choose not to be honest in their Dobbs decision?

For many years, anti-abortion activists pushed backhanded attacks on abortion rights, such as the architectural and credentialing requirements at issue in Hellerstedt, for a pretty basic reason. Until his retirement in 2018, Justice Anthony Kennedy was the Court’s swing vote in abortion cases, and Kennedy was unwilling to overrule Roe outright.

Although Kennedy voted to uphold most of the abortion restrictions that reached him on the Supreme Court, he co-authored the primary opinion in Casey, which weakened Roe while retaining “Roe’s essential holding” protecting “the right of the woman to choose to have an abortion before [fetal] viability and to obtain it without undue interference from the State.”

That meant that, so long as they needed Kennedy’s vote, anti-abortion activists had to work within Casey’s framework. Direct attacks on the right to an abortion would fail. Only more evasive attacks, such as burdensome regulations imposed on clinics or ideas to erect novel procedural barriers in front of abortion rights plaintiffs, had a shot at prevailing before Kennedy.

Kennedy is now retired. And Justice Ruth Bader Ginsburg, a feminist icon and reliable vote for abortion rights, is now dead. Both justices were replaced by staunch conservatives with anti-abortion records. So anti-abortion activists now feel comfortable making more direct attacks on Roe.

Indeed, Kennedy and Ginsburg’s replacements with anti-abortion Justices Brett Kavanaugh and Amy Coney Barrett probably explains why Mississippi spends the bulk of its brief in the Dobbs case arguing that the Court should explicitly overrule Roe v. Wade.

That said, there are two plausible reasons why justices like Kavanaugh and Barrett might prefer a more backhanded approach.

The first reason is that the Court has historically had very strong norms against overruling past precedents. Under the doctrine of stare decisis, Latin for “to stand by things decided,” appellate courts will typically follow their own past decisions — and at least one member of the current Court’s Republican majority has shown some caution about ignoring stare decisis even in abortion cases.

In June Medical Services v. Russo (2020), Chief Justice John Roberts cast the key fifth vote to strike down a Louisiana anti-abortion law that imposed the exact same credentialing requirements on abortion providers that the Court previously struck down in Hellerstedt. Although Roberts had historically voted to restrict abortion rights — and although his opinion in June Medical criticizes the Court’s decision in Casey — he ultimately concluded that upholding an abortion restriction identical to a restriction the Court had struck down just a few years earlier was a bridge too far.

“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts wrote in June Medical. But he also wrote that “the result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law.”

On a 6-3 conservative Court, abortion opponents no longer need Roberts’s vote to prevail. But it’s possible that he and at least one other Republican appointee will prefer to offer lip service to stare decisis in the Court’s Dobbs decision.

The second reason why the Court may prefer not to write the words “Roe v. Wade is overruled” is that some of its members may fear a political backlash if they do so. Shortly after the Court’s early September decision permitting Texas’s SB 8 law to go into effect, multiple polls showed the Court’s approval rating plummeting to historic lows. So there is recent evidence suggesting that the public would react unfavorably to a decision that clearly and explicitly overrules Roe.

Justices serve for life, so they don’t need to fear losing their next election if their polls drop. But if the Court has persistently low approval ratings, Congress is more likely to believe that it has cover to enact reforms limiting the Court’s authority (or even adding new seats to the Court). And a Court dominated by Republican appointees may not want to turn itself into a political punching bag in an election year when Republicans hope to regain control of Congress.

So what would a backhanded decision overruling Roe look like?

As mentioned above, the Texas law that was struck down in Hellerstedt offers one possible path forward, if the Court wants to eliminate the constitutional right to an abortion without explicitly overruling Roe. The Court could conceivably hold that there is still a constitutional right to an abortion, but states are free to impose burdensome requirements on abortion clinics — including requirements that are so expensive that they force clinics into insolvency.

Another possibility is to erect insurmountable procedural barriers in the way of abortion rights plaintiffs. These could include both limits on who is allowed to bring abortion rights cases, and limits on what sort of remedies are available to these plaintiffs. The Court might, for example, hold that only individual patients seeking abortions may file lawsuits — and not abortion providers or clinics — and that the only remedy available to patients is a court order permitting them, and them alone, to obtain an abortion.

Dobbs, however, is probably a poor fit for either of these approaches. Again, the question presented by the Dobbs case is whether “all pre-viability prohibitions on elective abortions are unconstitutional,” not whether clinics are allowed to file abortion rights lawsuits, or whether states can require every abortion clinic to include a billion-dollar operating suite.

But if the Court were to overrule Casey’s holding that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” and do nothing else, that would itself be a constitutional earthquake. It could also potentially be the death knell for abortion rights.

In Gonzales v. Carhart (2007), which was previously the low-water mark for abortion rights after Roe, the Court held that “state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” And there is legitimately some uncertainty about when a fetus becomes viable — recent research suggests that at least some premature infants born after only 22 weeks of pregnancy can survive.

So a Court that wishes to abolish the constitutional right to an abortion, and that is willing to stretch its existing precedents to the breaking point, could conceivably say that there is medical uncertainty about when a fetus becomes viable — and therefore, under Gonzales, state legislatures have “wide discretion” to determine when fetal viability occurs. Maybe Texas could pass a law determining that the fetus is viable in the first minute of pregnancy.

In any event, I don’t want to give Justice Samuel Alito any ideas. The point isn’t that the Court will follow any particular chain of reasoning if it decides to kill abortion rights but leave Roe nominally in place. Rather, the point is that the Court could quite easily write an opinion in Dobbs which eliminates the constitutional right to an abortion, but that doesn’t explicitly overrule Roe.

And, if it does, lawyers, Supreme Court journalists, and other people charged with translating judicial decisions for the general public should be upfront about what just happened. A decision eliminating the right to an abortion is a decision eliminating the right to an abortion, regardless of what the opinion actually says.

That said, there may be one important difference between a decision explicitly overruling Roe and a decision that does so in a more backhanded way. A dozen states — Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and Utah — have “trigger” laws which automatically ban all or nearly all abortions if Roe is overruled. These laws may not automatically trigger if the Supreme Court hands down a decision that leaves some empty husk of Roe still on the books.

But most of these states have Republican governors and Republican legislatures, who could swiftly enact a new ban if the Supreme Court overrules Roe in a backhanded way. Ultimately, if the Court hands down a disingenuous anti-abortion decision, America could soon look virtually identical to a country where Roe was explicitly overruled.