Abortion, Judicial Review, and Playing a Terrible Hand

By Eric Segall

On Monday, I suggested that pro-choice progressives should root for Chief Justice Roberts to encourage (I don't think it would be hard) the other four conservatives on the Court to reverse Roe and Casey this term. Today, Mike responded thoughtfully with his reasons why he disagrees. Here is a reply to Mike's excellent post.

First, where we agree. Mike and I are both pro-choice as a policy matter. My understanding is he would draw a moral line at the point where the fetus feels pain (which is further along than you might hear from the non-science right), but does not disagree with drawing the legal line at viability, which is where I would draw it. We also both agree that neither Roe nor Casey are constitutional outliers.

In my perfect world of "clear error" constitutional law, Casey would be wrong, but we don't live in that world. In a world where all the Justices, left and right, "make things up," all the time (Mike does not agree fully with that description), there is nothing wrong constitutionally with "making up" a constitutional right to abortion.

We also agree that Trump needs to go, and I refer the reader to Mike's astute and beautifully phrased description of this awful man upon which I cannot improve.

Now, where we disagree. Mike makes four major points. The first one, kind of personal, but a point good friends with lots of mutual respect can make, is that Mike says that my wanting the Court to overturn Roe and Casey is consistent with my priors (not about abortion but judicial review in general), and therefore my post should be regarded with "some skepticism." Maybe, but of course Mike not wanting the Court to reverse Casey is consistent with his priors about both judicial review and abortion. So, what's good for the goose.......

Mike's second point is that my prediction that the Court is sometime soon going to reverse Roe and Casey is just that, a prediction, and my view that if the Court did that Trump would be severely hurt at the polls is questionable because the right would latch on to guns, religious freedom, etc. Of course, one predicts the future at one's peril. But I play a lot of poker, and predicting the future is the single most important part of that game, and the second is playing bad hands well. I want to make clear that I do not mean in any way to denigrate the compelling need for women to have access to safe abortions by comparing it to poker--just that the analogy is an effective way to get my points across.

Pro-choice progressives have been dealt an awful hand on all sides: we have a terrible, conservative President; a backwards looking, conservative Supreme Court; and roughly half the states currently make it very difficult for poor women to access safe abortions (I hope Mike will agree that upper-class and rich women will always be able to secure safe abortions in this country). So the question is what to do about all that--how to play that very bad hand.

As I said in my first post, there is considerable evidence that Trump won in 2016 because of his list of SCOTUS nominees and his pledge to only nominate Justices like Antonin Scalia. He also made it clear that he was anti-choice (and pro-gun and "religious liberty"). We can agree to disagree about this but both my study of American politics and my living 40 years in the South tell me that abortion is the main lever here. There's no way to prove that, but I'm willing to say it.

In the long run, the most important thing this country needs to do is stop Trump's re-election. I suspect even the most ardent pro-choice activists agree with that (and I think Mike probably believes that too). The best tool we have to make that happen is to take abortion off the table as a Supreme Court issue. Sure, I could be wrong, but it is the best bet (especially because the other best bet, as I argue below, is that this will happen anyway).

Mike's third point is that if the Court returns abortion the the states, the right to choose will end in many states, and it is unclear what even liberal states like California and New York would do in the future given electoral pressure, and Congress might even pass federal anti-abortion laws. Furthermore, in the six states where abortion is now most regulated, Mike points to the fact that there were 100,000 abortions in those six states in 2017, and those might not occur if Casey is overturned.

What we don't know is how many of those women were wealthy enough that they would still have access to safe abortions after Casey is overturned. But my main response is that very soon the best bet is that those states will either be able to prohibit all abortions anyway or regulate the right to choose in a way that will effectively deny the right to poor women, And that is very likely to happen this June. But keeping Casey in name only is the worst possible outcome because then the right is severely diluted and Trump can still use abortion to gain re-election. Better for us if the case is overturned altogether.

If we are living in a world where New York and California prohibit or severely regulate abortion and Congress has the votes to pass national anti-abortion legislation (this assumes a GOP President and a GOP House and Senate), then the right to abortion is over anyway, and the Supreme Court would clearly not interfere.

Finally, Mike says that Roberts may or may not vote to overturn Casey  (notice Mike does not take issue with the probable reality that there are four votes to overturn that case), and that the idea that "Roberts would be persuaded to overturn Roe/Casey sooner rather than later for the purposes of displacing Trump strikes me as extremely far-fetched."

This is where playing bad hands really comes into play. Mike says in his post that if he thought "trading a later for an earlier overruling of the Court's abortion jurisprudence would dramatically increase the likelihood of relegating Trump to the ashbin of history, [he] would seriously consider climbing aboard the Segall train." My post was mainly about what pro-choice progressives should root for in a world where it is much more likely than not that the Court will sometime soon either eviscerate or overturn Casey. If that premise is wrong, my argument fails, but as a matter of odds, I think my premise is obviously the best prediction. Combined with how Trump won last time, if we (pro-choice progressives) don't change something substantial about the last election, we are foolish. The smartest bet therefore, given we have have been dealt a pair of 2's, is to take the Supreme Court/abortion issue out of the next election. Is Roberts likely to deal us that hand? No. Should we hope that he does? Yes.

I want to thank Mike for his excellent post and the opportunity to refine my arguments in this one.