Monday, April 20, 2020

The Pro-Choice, Progressive Argument for the Court Overturning Roe and Casey

By Eric Segall

The Chief Justice of the United States Supreme Court can quite possibly save our Union from the disaster of re-electing Donald Trump by voting to overrule the Court’s prior cases on abortion and return that controversial issue to the states and the voters. I say that as someone who is adamantly pro-choice and would support a constitutional amendment enshrining a woman’s right to choose or any legislation to that effect, local or national. But because the Court will someday soon return the issue of abortion to the states and the people anyway, Roberts could do the world a huge favor by taking that step now.

This term, in June Medical Services LLC v. Russo,  the Supreme Court heard arguments over a Louisiana anti-abortion law identical to a statute the Court ruled unconstitutional by a 5-3 vote in 2016 (Scalia had passed away and not yet been replaced). The only material facts that have changed since that decision are that Justices Gorsuch and Kavanaugh replaced Justices Scalia and Kennedy on the Court. Of course those are by far the most important new facts. With those personnel changes, there are almost certainly no longer five votes on the Court to invalidate state laws regulating and/or prohibiting abortion.

The conventional wisdom among legal scholars left, right, and middle is that the Court will first undercut Planned Parenthood v. Casey (the case that supplanted Roe v. Wade as the law of the land on abortion), and then eventually overturn the case, entirely returning the issue of abortion to the states. The conservative vote that most people think is possibly in play to not take that step is that of Chief Justice John Roberts. His reputation for being an institutionalist, some argue, may make him reluctant to overturn Casey and Roe altogether. This reputation comes mostly from his surprising vote in the Obamacare case in June 2012 when he joined with the four liberals to uphold the law. Some think his vote was based on his desire to save the Court’s and maybe his own reputation. His biographer wrote the following:
Perhaps he had worries about his own legitimacy and legacy, intertwined with concerns about the legitimacy and legacy of the court…. However the chief would explain it -- and he has not explained it beyond his written opinion -- the case added a new dimension to a man who insisted that he always decided cases based on the law. Viewed only through a judicial lens, his moves were not consistent, and his legal arguments were not entirely coherent. But he brought people and their different interests together. His moves may have been good for the country at a time of division and a real crisis….
Therefore, the argument goes, similar concerns might prevent him from radically undoing the Court’s abortion jurisprudence.

I don’t think that is likely (Roberts’ wife works for a strongly anti-choice organization), but even if I’m wrong, Roberts will undoubtedly vote with the other four conservatives to weaken Casey so much that red states will effectively be able to ban most abortions. The reality is that even today poor and middle-class women have a difficult time securing safe, legal abortions in about half the states. As one example of this problem, 26 states have fewer than six abortion clinics, and five states have only one. And to secure abortions in those states, women generally have to run through burdensome, difficult, and medically unnecessary procedures. These obstacles for women are only going to get much worse in GOP-controlled states, while in most blue states Roe and Casey are not needed.

Exit polls taken after the 2016 election showed that approximately 21% of those who voted said the Supreme Court was their most important issue, and 56% of those cast their ballots for Trump, which is a whopping and important figure. No doubt guns and religious liberty played some role, but abortion most likely was the major driver behind the statistics. Trump’s list of possible nominees to the Court as well as his promise to appoint Justices “like Scalia,” an outspoken critic of the Court’s abortion rules, almost certainly played a major role in his victory.

The Supreme Court could change most of that advantage by reversing Casey this June. Although the Justices did not ask the parties to brief the issue, the Court could easily overturn Casey without briefing given how much attention has been devoted to that issue in the past and the calls of a number of Justices to do so in dissenting and concurring opinions.

No matter who wins this November, the five conservatives are likely to reverse Casey at some point. Should a Democrat prevail, their incentive to do that quickly becomes even stronger. And since the oldest Justices on the Court are Ruth Bader Ginsberg and Stephen Breyer (two pro-choice Justices), the chances of liberals taking control of the Court anytime soon are slim. The bottom line is this: The Supreme Court is eventually going to return the issue of abortion to the states. Pro-choice advocates need to plan for that, well, today. But the more the issue lingers in the courts, the more money is not spent on educating the public about the need for women to control their reproductive destinies.

If the Chief Justice is happy with the last three years of controversial Trump policies landing in his Court and Trump’s juvenile tweets (and my intuition is that he is not), then slow rolling the reversal of Roe and Casey makes a lot of political sense. But if the Chief wants to help make sure Trump is not re-elected, he should join with the other four conservatives who undoubtedly would like to overrule the Court’s abortion cases right now. In the long run, we’d all be better off, even pro-choice progressives.


Postscript by Michael C. Dorf: As regular readers of this blog are aware, I do not agree with everything each of my co-bloggers writes (just as they do not agree with everything I write).  Accordingly, I do not typically write to register disagreement. I'm making an exception today because I am one of the signers of an amicus brief in the Louisiana abortion case pending in the Supreme Court and do not wish to be seen to endorse an argument that contradicts the conclusion of that brief. I shall explain the nature of my disagreement with Prof Segall's position in a follow-up post tomorrow. 


Joe said...

The first sentence of this post makes it too hard for itself. If Trump is not going to lose, it likely won't turn on the results in this one case. It also is unclear what SCOTUS actually will do in the future, especially if Biden wins.

In fact, what happens (this is not impossible) if the ERA actually passes c. 2022? Roberts is loathe to go too far. When he says women who were raped in Texas do not have a legal right for abortion [yes, abortion rights will be restricted, but we are talking a large range as seen by how even post-Heller, guns can be regulated in lots of ways], when it is truly "back to the states," get back to me.

If all the other court related issues will not encourage people -- beyond the fact he is simply horrible [even some Republicans feel this way] -- this doing so is unclear. This also isn't the first trip to the rodeo for the author. I wasn't convinced with the past discussions on why Roe v. Wade was wrongly decided in part because of its results on politics either. The fact that abortion was already a major election issue in 1972 (before Roe) suggests why. Before Heller, guns were more widely a policy issue. It is unclear how this changed the political winds one way or the other really.

If the November elections turns on how far Roberts votes on abortion, I fear for the future, since I doubt he will go all the way anyways. And, what happens if that happens? Good luck with the pro abortion rights amendment given the supermajority, including that core of states that are anti-choice. A national abortion rights law? The same Roberts Courts might strike that down on Boerne grounds since the Congress was not enforcing a constitutional right applied to the states.

In the process, women will have even less rights. But, I'll see what Prof. Dorf says.

Joe said...

The push for a broad decisions also won't be cabined.

The "judicial activism" will pop up in other places. Judicial minimalism in practice might be muddled, but on some level it also is pragmatically perhaps the best one can hope for with this Court. But, as an abortion history scholar said on Twitter, the matter is obviously open to debate. Thanks to the blog for offering both sides.

Greg said...

I'm not sure I buy the premise.

The issue is really abortion, not specifically the court cases surrounding it. Roe is just a rallying cry. If the courts overturn Roe and Casey, the battle will just move to Congress. You think people will be okay with what they consider killing babies just because it happens in another state? The message changes from "the Supreme Court won't let our state stop people from killing babies" to "Democrats in Congress want to allow California and New York to keep killing babies."

I agree that educating the public is necessary to actually keep abortion permanently, but a full retreat like you propose would result in the only way to get an abortion being to fly to Canada. Of course that means it's still available to the wealthy (why legislators don't care about the result for themselves,) but not to the poor.

Eric Segall said...

Joe I think the last election did in fact turn on the Court, Abortion, and the List. This one may too, and I fear for the future every day.

Greg, in about half the states abortion will still be legal, no need to fly to Canada. The Congress is not going to outlaw abortion nationally, and if it had the votes to do that, it would have the votes to do many other dastardly things, and then yes Canada would be the best option. Given what I think is the inevitability of Roberts' vote (and this is where I think Mike will disagree), the single most important thing is to help Trump lose. Full stop.

Greg said...

My larger point (which I admit got lost in my post) was that Republicans can continue to use abortion as a national campaign issue even if they get Roe overturned (at least until the next time they control both houses of Congress and the White House,) so why does it put Democrats in a better position if they lose so much ground now?

Further, Trump can point to the Supreme Court decision as a success, and an example of why he should be re-elected.

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