Tuesday, April 21, 2020

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.


Michael C. Dorf said...

Just one small point about priors: Eric is right of course that everyone, including me, has priors. My claim wasn't that he has them while I don't. My point (1) was a negative one: Eric claimed in his original post that he was speaking as a friend of abortion rights and therefore implicitly claimed extra credibility on a kind of Nixon-to-China rationale. I meant to cast doubt on that claim of extra credibility.

Legal Realist said...
This comment has been removed by the author.
Legal Realist said...

Excellent post.

A few thoughts:

I agree that the Court is likely to keep Casey in name only. The general public might not understand the holding in Hellerstedt, but they know what Roe and Casey broadly stand for: and, so, functionally banning abortions without explicitly banning abortions is the best way to accomplish the five justices' political objectives while maximally preserving the judiciary's political capital.

That said, I'm not sure this is a "worst case scenario." The chances of the left recapturing the Court anytime soon are quite slim, but—for similar reasons of political capital—a liberal Court that inherits Casey will have an easier time expanding abortion rights than a liberal Court that inherits nothing and is forced to recreate Roe. (Has such erasure of a substantive right followed by its recreation ever happened? To my admittedly limited knowledge, no; and, barring a surge in Lochner revivalism, I think such a trajectory—particularly on so short a timeline—is unlikely.) Surrendering Roe/Casey now could mean the permanent death of abortion rights in the deep-red states.

There's at least some reason to doubt the necessity of overturning Roe to the Democrats' political success. First, a clear majority of Americans support Roe's continuation, and while it may be an issue that energizes the Republican base, it's at least worth wondering how *much* of a difference it makes to that base. To be clear: I am not questioning how important the issue is to those voters. Rather, my point is that the portion of the Republican base likely to be energized by abortion is already likely to turn out and vote Republican; does the potential to strike down Roe significantly move the needle with these voters? I am not at all disputing Professor Segall's understanding of Southern politics—but which of the Southern states would be likely to go blue if abortion was not made an issue?

I do agree with Professor Segall that a Court that openly strikes down Roe would give Democrats a major electoral advantage, but I'm not sure that advantage is close to necessary to defeat Trump. Hillary Clinton lost an extremely close election that featured completely unprecedented action by the Director of the FBI *days* before that election occurred. This primary cycle, Joe Biden has defeated Clinton's 2016 Democratic opponent, Bernie Sanders, by wider margins than Clinton beat Sanders in the last primary, despite the fact that Biden's platform, in terms of substance, differed in no salient way from Clinton's. Whether that is chalked up to the connection to Obama or gender (or both), there's little reason to think that Biden is positioned worse than Clinton now. And the states that Clinton needed to win—Wisconsin, Michigan, and Pennsylvania—are not exactly states known for their strong anti-abortion politics. If the Republican Party can't even must state-wide election by pushing the abortion issue in those states (each of which has Democratic governors), what reason is there to think that a Democratic Presidential candidate stands no shot unless Republicans don't have the abortion issue to push?

Perhaps the argument is that the Democrats should want to do *everything* possible to defeat Trump, but I don't think anyone seriously believes that. After all, if Democrats adopted the Republican Party platform wholesale, they would be almost certain to defeat Trump—getting the anti-Trump votes of the left while also stealing a few Republican voters. I hope that doesn't happen. I want the principles of the Democratic Party to be preserved, and I'd like for the principles of the country to be preserved as well. That's why I'm hoping Casey is given a fighting chance.

Eric Segall said...

Very thoughtful post. I think we do disagree about the swing votes and abortion. There are tens of thousands of evangelicals in those states for whom abortion is THE issue. I think we also disagree about abortion politics which I think would improve dramatically for our side once judicial coercion is removed. Finally, symbolically the headline “Court overrules Roe” would give folks in swing states who hate Trump but hate Roe more the excuse to vote against him.

Joe said...

I would note that the full name of the case is Planned Parenthood of Southeastern Pennsylvania v. Casey. Pennsylvania has been a battlefield.

If we want to play prediction, I think what Roberts will eventually do is retain Casey in some form but make it easy to burden women in a variety of ways including making it harder to challenge laws facially and in pre-emptive challenges. This keeps abortion legal. Women raped will have a right to get an abortion. And so forth. Lower courts also will retain the power to block extremist laws. No six week cut-offs likely.

What does a clean reversal of Roe/Casey get you? A range of states with very strict laws and a major voting issue to turn against Republicans. You also get a lot of hurt for the girls/women in need of abortion services. Dems might eventually help them. So we get talk of amendments and such. But, Roberts burdening women ALREADY will make it an issue, for those who would think it worthwhile at the polls.

And, to the degree swing states on the state level protect abortion (and even a few red states do), that will temper the voters passions even more. So, what MORE will this one thing, a guess at that, do? "The best tool we have to make that happen is to take abortion off the table as a Supreme Court issue." That won't happen. Two reasons, not even comprehensive: (1) Roberts in 2020 isn't likely to do it (2) There are a range of issues here, including the power of Congress to regulate, that still will be on the table even if Roe is overturned. We saw this with political gerrymandering. The issue is still going to come up in some ways. It isn't totally non-justiciable.

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.

A few states might do that but in practice even pre-Roe, there was not a complete ban of abortion. There was various openings. On top of that, a non-complete reversal of Casey, which again I doubt will happen (Roberts and Kagan, if we want to playing guessing games, dissenting together in Ramos on precedent grounds very well might be a sign) will leave open even more openings. The case is not about completely returning abortions to the states. It would require another case to uphold criminalizing teenagers who were raped from having abortions in second month of pregnancy.

Rushing things for the felt idea that everything else on the table isn't enough to beat Trump but this will be is a level of betting best left to friendly poker games.

Greg said...

I don't know about Mike, but I disagree with "upper-class and rich women will always be able to secure safe abortions in this country."

I agree with the slightly differently worded "upper-class and rich women in this country will always be able to secure safe abortions."

The distinction lies in whether or not a future Republican Congress will eventually succeed in outlawing abortion nationally. I honestly believe that there are many Republican legislators who are largely able to dodge the issue of abortion because they can point to the Supreme Court and say "my hands are tied on this issue." As soon as the court overrules Roe and Casey, they can no longer dodge the issue. There will be tremendous pressure on Republican legislators to pass laws that outlaw abortion nationwide, and they will no longer be able to say that it's something beyond their power. With a clear overruling of Roe and Casey the bills to outlaw abortion nationally are going to come fast due to pressure from constituents, probably even before Republicans control the legislature and the Presidency.

Joe said...

In practice, even women with money will probably be burdened in significant ways, some very well having problems securing safe abortions.

There would be, e.g., special cases such as a rich woman who has one of those tragic cases where a later term abortion is indicated. If there are something like three doctors in the whole country, after one who was assassinated, if that, even willing to do that, it will be a problem.

Then, there will be those from conservative families or whatever, who would have a problem being away from home for maybe days to have one if it isn't available locally. Sarah Weddington (who argued Roe) went to Mexico to get an abortion pre-Roe. I haven't read her book for a while, but not sure how safe it was.

I don't know about nation-wide bans, but among the issues will be First Amendment type arguments that even if Congress in the future protected abortion maybe it isn't appropriate to require all health plans to have it or something without exceptions. This is but one way the matter, even if Roe/Casey is overturned, it still will be in the courts. As seen with the whole Hobby Lobby issue.

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