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Will the Supreme Court Overturn Roe or Prop It Up with a Compromise?

And what would either outcome in this term’s major abortion case mean for the courts and for our fractured country?
December 3, 2021
Will the Supreme Court Overturn <i>Roe</i> or Prop It Up with a Compromise?
(Photos: GettyImages / Shutterstock)

On Wednesday, the Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization, the second of two major cases this term involving abortion. Since the Roe v. Wade decision in 1973, with some modifications in Planned Parenthood v. Casey in 1992, the Court has considered abortion a right protected by the Constitution. Following the Court’s decisive rightward shift last year, observers expected it would soon take a swipe at Roe or even overturn it. Wednesday’s oral argument seemed to confirm that expectation.

The term’s first abortion-related case involved consolidated challenges to SB 8, a Texas law enacted earlier this year that bans abortions “after detection of an unborn child’s heartbeat”—around six weeks’ gestation. That threshold ignores the one set forth in Casey for when states can regulate abortion: “viability,” the stage at which a fetus can live outside the womb, approximately 24 weeks.

As a means of avoiding judicial review, SB 8 entices private parties to enforce the law for a monetary reward. Although the procedural peculiarity of that “bounty hunter” provision gives the Court a way to resolve the Texas case without wading into Roe, it’s telling that a majority of justices twice refused to temporarily stall enforcement of the law. Given that at least five members of the Court were content to leave in place a law that undermined its own precedent, it is no surprise that the Court seems poised to move against Roe now that it has that option squarely before it in Dobbs.

The focus of Dobbs is a 2018 Mississippi law banning abortions after 15 weeks. Soon after it was enacted, federal courts enjoined the law. (Another Mississippi law using a fetal heartbeat standard was also subsequently blocked by federal courts.) But in the years during which the matter worked through the appeals process, the makeup of the Supreme Court shifted.

Let’s set aside the ethical and practical implications for women of child-bearing age and the countervailing interests of unborn fetuses, and look at some of the legal and institutional stakes in this case.

One of the arguments against reversing Roe after nearly five decades is that doing so will further delegitimize the Supreme Court as a neutral arbiter of facts and laws, which could come back to bite the country if one day people decide simply to ignore its decisions. After all, as Justice Sonia Sotomayor noted on Wednesday, the very notion that the Supreme Court gets to definitively decide constitutional issues is a creation of its own precedent dating back to the landmark 1803 ruling in Marbury v. Madison. The Constitution itself is silent on the subject of which branch resolves constitutional questions; one day, a president, or Congress, or a mob of angry citizens could simply decide that the Court no longer gets such deference. Andrew Jackson’s famous line about the Supreme Court—“John Marshall has made his decision; now let him enforce it”—is apocryphal, but the Court’s status in our system of government cannot be taken for granted.

Dobbs also puts the Court in a real bind in that any justice who might dislike Roe but remain willing to preserve the right to abortion can point to no good alternative to the Roe/Casey standard. Critics claim that Roe and Casey (like many other rulings) are built on a shaky legal doctrine known as “substantive due process,” and that Casey’s viability test—which was fashioned in Casey but preceded by a trimester framework in Roe—has no grounding in the Constitution’s language. As Chief Justice John Roberts—who may be seeking a compromise that can preserve some version of Roe and Casey—quipped on Wednesday, “If you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice . . . and why would 15 weeks be an inappropriate line?”

One answer to Roberts’s question: Prior to viability, the fetus is entirely dependent on the mother, so one could argue that it makes logical and practical sense to keep government out of the abortion decision until the fetus can survive on its own. No such rationale was posited for a 15-week threshold by Mississippi in Dobbs. Instead, Mississippi’s lawyer argued, the Court should gut Roe altogether, leaving the states with unfettered discretion to ban and even penalize abortion, or should apply a “rational basis” standard of review. This rational basis test is what applies to the least objectionable of government regulations: So long as the state can give some rational reason, those laws stand. (Scholars have deemed rational basis “an empty, almost meaningless form of review.”) Laws that impact classifications such as race or religion get the highest level of scrutiny, known as “strict scrutiny,” while gender gets something called “intermediate.”

Casey offered another test that’s unique to abortion—the “undue burden” test, which tolerates government restrictions even prior to fetal viability if they don’t unduly burden the pregnant mother’s constitutional right to access abortion treatment. The Court didn’t define “undue burden,” so the test is messy and subjective, creating loads of litigation, and thus does not point to a workable replacement standard for viability, which seems to be what Roberts is looking for.

If Roberts can get five justices to join him on a watered-down rational basis or undue burden test for more restrictive abortion laws, the result would probably be a 6-3 split that looks like something of a compromise: Roe would live for another day, though in a constrained form. But such a compromise would require Roberts to persuade some of the other conservatives. Which justice might be gettable? Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch seem ready to ditch Roe altogether. So does Justice Brett Kavanaugh, who during Wednesday’s oral argument seemed inclined to punt the question to state legislatures entirely. Justice Amy Coney Barrett, who publicly criticized Roe before becoming a federal judge, focused during oral argument on so-called “safe haven laws” offering women places to relinquish their babies to the state without fearing prosecution for abandonment or endangerment, although it is unclear what part that question could play in developing a constitutional standard moving forward.

If Roberts somehow brokers a compromise preserving Roe and Casey with a half-baked “undue burden” standard, one immediate consequence would be a parade of litigation over which novel abortion laws pass muster under the new standard and which do not. Is a 15-week ban okay, but not a 13-week one? How about a law declaring illegal Plan-B—the “morning after pill”—on the theory that regulating a pregnancy at the point of conception has a rational basis given the state’s interest in protecting the fetus? The likelihood of such ongoing chaos would seem to make a compromise less likely. The justices are more likely to be incentivized to resolve Dobbs in a way that puts the abortion fights to rest at the Supreme Court level. The Court knows how to achieve this when it wants to, as it did in 2019, for example, by deeming political gerrymandering completely beyond the purview of judicial review, period.

Which would suggest that the more likely outcome will be a 5-4 ruling killing Roe on the theory that it was an “egregiously wrong” and bad law that America needs to put behind it. A large part of the oral argument on Wednesday involved this point—the question of when the Court should respect its own precedents and when it should overturn them. Along with counsel for Mississippi, Justices Gorsuch and Kavanaugh likened overruling Roe to the fate of Plessy v. Ferguson, the 1896 ruling that deemed racial segregation constitutional under the Due Process Clause of the Fourteenth Amendment (the very provision of the Constitution that undergirds abortion rights). The Supreme Court overruled Plessy with Brown v. Board of Education in 1954, and as Kavanaugh suggested, the latter decision that has stood the test of time as an important turning point in American history.

There is, however, a contextual difference that could prove important. Brown v. Board was a 9-0 decision. The Court understood that it was rendering a historic ruling and overturning longstanding precedent, so it took pains to give its decision maximum legitimacy. If this Court overturns Roe on a 5-4 split—or a 6-3 split, if Roberts decides to throw in with the overturners to try to give the ruling more legitimacy—it will be powered by three justices controversially appointed by a single president who lost the popular vote. And the law which they would be overturning has enjoyed sustained popular support for two generations.

These facts do not make such a decision right or wrong. But to pretend that they do not exist would be either incredibly naïve or shockingly cynical.

Of course it’s impossible to guess how the public would look back decades from now on a 5-4 decision to overturn Roe. But it seems safe to suppose that if the Court charts that path, the immediate effects will add to our current moment of political destabilization.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.