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.