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.

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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.