Maybe Roe v. Wade Is Going to Survive

No one can predict what the Supreme Court will do but, so far, they’re not rushing to shatter this precedent.

When Amy Coney Barrett took her seat on the Supreme Court last fall, the demise of Roe v. Wade appeared imminent. Her arrival meant conservatives now had a 6-3 majority. The potency of Chief Justice John Robert’s swing vote, which in June barely struck down a Louisiana law restricting access to doctors who perform abortions, was now diluted. And during her confirmation hearings, Barrett brazenly engaged in a dialogue with Sen. Lindsey Graham, the South Carolina Republican, that mapped out the steps needed to overturn 1973’s Roe and its companion decision, 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey.

And when Barrett was seated, a case threatening the heart of Roe was already at the Supreme Court’s door. Dobbs v. Jackson Women’s Health Organization involves Mississippi’s ban on abortions after 15 weeks of pregnancy. The state law was struck down by the Fifth Circuit Court of Appeals in a straight-forward ruling: relying on Roe and Casey, “[s]tates may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions.”

For the Supreme Court to overrule the appellate court and uphold the state law would render Roe a shell at best, a carcass at worst. And all the Court has to do is take the Dobbs case, go through the motions of hearing the arguments in the spring, and then rule in Mississippi’s favor by this summer.

But with every passing week, it looks increasingly likely that the Supreme Court isn’t going to take the case, although it’s certainly possibly that they will.

The Supreme Court holds Friday conferences to decide which cases merit oral arguments. Since Barrett’s confirmation, Dobbs has been on the agenda 11 times. And each time, no decision has been made. The case is back on the agenda for the conference on March 5.

If the Court is going to take the case this term, it has to act soon. The final round of oral arguments is the last week in April.

Why the hesitation? Here’s what we do know and what can be reasonably discerned.

To win a case requires five S Justices, but to take a case only requires four. Otherwise, a majority could predetermine all outcomes before oral arguments are made. But for a case of this magnitude, a mere four Justices would be extremely reluctant to proceed without knowing they had a fifth to win. To take the case and lose would further embed the Roe precedent.

Therefore, if the Supreme Court does not take Dobbs this term, then we have a very strong indicator that five votes for a quick kill of Roe do not exist.

How could that be possible? We can’t be sure if Barrett represents the fifth vote.

There’s plenty of reason to think she might be eager to get at Roe. We do know she is personally and fervently opposed to abortion, having signed ads calling for “an end to the barbaric legacy of Roe v. Wade” and “for the unborn to be protected in law.

But she also discussed the Roe precedent dispassionately during a 2013 speaking appearance, offering that “I think it is very unlikely at this point that the court is going to overturn Roe, or Roe as curbed by Casey. The fundamental element, that the woman has a right to choose abortion, will probably stand.”

During her Supreme Court confirmation hearing, in detailing to Graham how a precedent could be overturned, she explained, “the inquiry begins because there’s been some argument that the precedent was wrong. But that’s not enough to justify an overruling … You have to look at reliance interests [of] those who have relied on the precedent [and] ordered their affairs around it.” She further noted, “The court in Casey spent a lot of time describing the reliance of people on the right to an abortion.”

Since Barrett ended the dialogue by saying, “Brown versus the Board of Education overruled Plessy versus Ferguson to get rid of the separate but equal [precedent],” her analysis of reliance interests was not automatically reassuring. For all we know, her bedrock belief that all fetuses have human rights upon conception will ultimately override her awareness that for decades millions of women have been relying on Roe and Casey to determine the course of their lives. But the possibility exists that Barrett will set aside her personal views and actually apply some consistent judicial principles.

Beyond judicial philosophy, Barrett’s decision making may also be concurrently driven by political considerations. A news article about that 2013 appearance reported, “Barrett said some individuals on the ‘pro-choice’ side of the abortion issue believe the Court overstepped in Roe v. Wade and should have instead allowed more time for states will trend toward more permissive laws. She said these people point to ‘Roe rage’ and its political consequences as evidence.” While this may mean she would feel justified in overturning Roe, it may instead mean she is politically savvy enough to recognize the potential for anti-Roe rage—gigantic progressive backlash sweeping in enough Democratic senators willing to abolish the filibuster, pack the Court and end its conservative majority.

Of course, Barrett’s careful wordings and nuanced analysis may be a thin, disingenuous masking of her determination to overturn Roe immediately. She wouldn’t be the first member of the Supreme Court to have dissembled at a confirmation hearing. But even if she is a sure vote to overturn, one or more of the other conservative Justices may not be.

In last year’s case striking down Louisiana’s abortion restrictions, Justice Clarence Thomas wrote a blunt and broad dissent, declaring “our precedents … created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.

Unsettling stuff. But on the upside, no other Justice signed Thomas’ dissent. 

Even if the Supreme Court bypasses Dobbs and leaves the lower court ruling in place, that, of course, should be on no solace to advocates of legal abortion.  The conservative Court majority will almost surely continue to chip away at the existing precedents and allow other restrictions to abortion access. But the slow, incremental path buys Democrats and pro-choice activists time—improving the odds that in due course enough vacancies will arise while Democrats control the White House and Senate to recalibrate the Court’s ideological orientation.

(Perhaps the path of the quick, dramatic ruling on a par with Roe itself would appeal to progressive accelerationists—those who want pro-choice backlash to be stoked as soon as possible in hopes of packing the Court. But such a final outcome could not be guaranteed.)

The hopeful interpretation of what has been said, and unsaid, by the conservative Justices will be rendered moot if the Court does soon decide to take the Mississippi abortion ban case. But if it doesn’t, you’ll know why.

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Bill Scher

Bill Scher is the host of the history podcast "When America Worked" and the co-host of bipartisan online show and podcast "The DMZ"