An Opportunity to Overturn Roe

When Amy Coney Barrett was sworn in last October as a Supreme Court justice, many hoped and others feared that the fuse was lit on Roe v. Wade. Many say that there is now a six-justice “pro-life” majority on the Court. What this is supposed to mean is unclear. It is not apparent that six justices believe all abortions—or even all elective (non-therapeutic) abortions—are morally wrong. Nor is it evident that six justices believe that almost all abortions should be prohibited by law. It is, however, practically certain that all the justices save for Breyer, Kagan, and Sotomayor believe that Roe was wrongly decided. These six also believe, albeit to varying degrees, that Roe was a mistake that has haunted the Court, and challenged what they would call its “legitimacy,” ever since.

If a “pro-life” justice is one who is fed up with Roe v. Wade and wishes it would go away, then there are indeed six of them. How many justices are prepared to overrule Roe v. Wade is a different question. The Court’s inaction this term on an abortion case from Mississippi strongly suggests that fewer than four justices are prepared to overrule Roe.

In Dobbs v. Jackson Women’s Health, the Fifth Circuit Court of Appeals struck down a Mississippi law that prohibited abortion, with very limited exceptions, after fifteen weeks' gestation. On June 15, 2020, Mississippi filed for review by the Supreme Court. (These are called “cert petitions,” short for “certiorari.”) Mississippi’s lawyers wrote to the Court, in proper lawyerly fashion, that the questions presented “do not require the Court to overturn Roe or Casey” (my emphasis). They also wrote that if the Court determines that Roe and Planned Parenthood v. Casey cannot be reconciled with other precedents and the scientific facts of the matter, then Roe and Casey should indeed be overruled.

Dobbs thus tees up the question of overruling Roe as well as any other case has. Yet more than ten months out, the Court has neither granted nor denied review. It has disposed of hundreds of other cert petitions in the meantime. Even if the justices granted review in Dobbs tomorrow, it is too late for the case to be briefed, argued, and decided before this term ends in late June. This means that there is no realistic chance that the case would be decided before this time next year—if the Court decides it at all.

The Court’s inaction on this case is telling. We are nearing a half-century of pushback to Roe. The vast bulk of the legal effort has been strategically indirect; that is, focused on issues such as informed consent, clinic regulations, and other matters affecting pregnant women’s health and well-being. The laws passed to serve these ends have been immensely valuable. They have saved the lives of some women who might have otherwise perished from shoddy abortions. They have spared countless women the psychic trauma of knowing forever that they killed their unborn child. This whole legal effort has been a rallying point for sustaining a pro-life culture without which we would not have, among other things, a “pro-life” majority on the Supreme Court.

But these efforts have just about run their course. There are few additional babies to be saved by laws that do not simply prohibit some abortions. So the pro-life movement has secured laws in several states that prohibit abortions when they are sought for a particular reason—say, due to a pre-natal diagnosis of Down's syndrome or because of the unborn child’s sex or race (“eugenic” abortions). More often, states have passed abortion bans based on gestational age: After six weeks, for example, due to onset of the fetal heartbeat, or after fifteen weeks (or so) because from that point on the unborn baby feels pain.

So far, every one of these laws that has been challenged in court has been struck down. Several judges who voted to strike down these bans made it clear that, were it not for controlling Supreme Court precedent, they would have voted differently. That precedent is Roe, as it was rearticulated in 1992 in Casey: “A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” “Viability” occurs in law, if not in medical fact, at about 22–23 weeks into pregnancy. Roe and Casey stand athwart the pro-life path forward.

It takes the votes of four justices to “grant cert.” Three or more of the “pro-life” majority therefore have so far declined to seize Dobbs to overrule Roe. Pro-lifers are perplexed and worried. They should be.

No one outside the Court can say with confidence what is happening, or why. Leaks from within the Court are rare. None has been reported about Dobbs. Intra-Court “cert politics” are complex. One hypothesis is that the Court has already decided to deny review, but that one justice is preparing a lengthy dissent, and is circulating it for additional signatories. I suspect that the justices cannot decide what to do, and that they will kick the can down the road. Dobbs would then be held over until the next term in October 2021.

In cases as potentially significant as Dobbs, it can take five justices to garner review. That is because four justices keen to overturn Roe v. Wade are unlikely to vote for cert unless they are confident that the case will be decided to their liking. Even so, that means that at least two of the six “pro-life” justices remain, in some important sense, holdouts. Perhaps all six are unwilling to take that fateful step. They might, however, be ready to pierce the protective shield around “viability.” Then their challenge would be to lay down some non-arbitrary limiting norm, so that they could convincingly maintain that while some pre-viability abortions must be permitted, others may be banned. It is not an easy lift.

It is safe to conclude that, contrary to the hopes of many and the fears of others, there is presently no majority on the Court prepared to overturn Roe. Where does that leave the pro-life movement, especially its legal strategy?

Conscientious state lawmakers should continue to enact pre-viability bans, as Mississippi did in Dobbs. That is the only potentially fruitful way forward on the legal front. Recent experience in the courts with these bans has been sobering, but it should not be discouraging. For there are now working pro-life majorities on several of the courts of appeals; these judges have been stymied by the apparently ironclad rule of Roe and Casey, but the removal of the judicially-created barrier of “viability” could let loose a cascade of pre-viability prohibitions, and in due course test the hypothesis that there is no principled, coherent stopping point between removal of the “viability” standard and flat-out reversal of Roe. Even a Supreme Court unwilling now to cast Roe aside could, and should, tear down that wall.

Gerard V. Bradley is professor of law at the University of Notre Dame and trustee of the James Wilson Institute.

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