So what if you lose?
This month, Alabama passed the strictest abortion law in
the country, which offers
few exceptions for the procedure and possible prison sentences for doctors who
perform them. Also this month, Missouri lawmakers joined four other states this
year to pass a “heartbeat” bill, which prohibits
abortions once a fetal heartbeat is detected.
The goal of these bills — and others like them — is
clear: to propel the dispute to the Supreme Court, where proponents hope the
Court will overturn Roe v. Wade. In
that decision 46 years ago, the Court found a constitutional privacy right to
abortion.
Proponents of these new state laws are confident in their
chances. They reason the Court has a 5-4 conservative majority, and that the
recent additions to the Court — Justices Neil Gorsuch and Brett Kavanaugh — will
surely support their cause.
But favorable Court rulings are never guaranteed. And
proponents must consider a very real possibility that they could lose.
For starters, proponents could suffer a legal knockout
before even reaching the highest court. Until Roe and its progeny are overturned, these decisions remain
controlling law for lower courts. So when the new Alabama law is inevitably challenged,
a district court would be compelled to block the law before it even takes hold.
And if that decision were appealed, the 11th Circuit would most certainly
uphold the lower court’s ruling.
From here, proponents could appeal to the Supreme Court. But the Court could always refuse to hear the case. It only takes four justices to accept a case, yet the justices most interested in examining Roe could easily find the Alabama law a poor vehicle for doing so. The law is politically unpopular, even among leading Republicans. And because the Alabama law is so unique in its direct challenge to Roe, there are no conflicting circuit court decisions, a key consideration for the Court when determining whether to accept a case. This consideration itself could spell doom for proponents. Indeed, just this morning, the Court declined to review one provision of an Indiana abortion law because only one circuit court had “thus far addressed this kind of law.”
Paradoxically, and for these same reasons, one law
professor has speculated
that because the case is so “unattractive,” the four liberal justices on the
Court may be tempted to take it to place the five more conservative justices
into a public — and jurisprudential — bind.
Of course, the controversies in Alabama, Missouri and
elsewhere overshadow the fact the Court today is considering
petitions that could narrow — or even overturn — Roe. Nevertheless, even if the Court
accepts one of these many challenges, proponents are still not guaranteed a
sweeping legal victory. After all, in 1992, many were certain Planned Parenthood v. Casey would be Roe’s end, too. Indeed, on the eve of
the Casey argument, the Washington
Post’s Ruth Marcus wrote,
“After two decades of battling over the constitutional right to abortion, the
two warring camps have finally found something on which they can agree: The
abortion-rights side is about to lose.” Instead, the Casey decision reaffirmed Roe’s
central tenants which, during his recent Senate confirmation hearing, Justice
Brett Kavanaugh called
“precedent on precedent.”
To be sure, the legal doctrine of stare decisis — as
recently emphasized
by Justice Clarence Thomas — “does not compel continued adherence to …
erroneous precedent.” Although Thomas’ recent statement did not concern
abortion, some have viewed it as indicative of a growing eagerness on the part
of the Court’s conservative wing to overturn other long-term precedents,
including Roe. Justice Stephen Breyer’s
dissent in the same case amplified these concerns — in fact, Breyer cited
Casey to warn about the many dangers
of overruling precedent and ominously hinted about “which cases the Court will
overrule next.”
Yet any attempt to overrule precedent requires five
justices. In this era, that often requires Chief Justice Robert’s vote. Perhaps
more than any other justice, the chief justice is cognizant of the Court’s public
perception and often publicly emphasizes the Court’s independence from partisan
politics. Combined with his preference for consensus and narrow rulings, it is
unlikely that Roberts would sign on to an expansive rejection of Roe, especially in the backdrop of the
2020 election. That presidential candidates have argued court packing and other
radical Court reforms are appropriate responses to unfavorable rulings may also
increase his reluctance to do so.
Proponents and state legislators are eager to overturn Roe. Their method of choice has been to
enact broad and controversial legislation that challenges Roe’s core tenet. They are free to gamble in the courts, but they must
understand the risks of doing so. Such a defiant strategy may affirm Roe rather than reject it.
