What's Wrong with Prof Segall's "Win by Losing" Approach to Abortion?

by Michael C. Dorf

Yesterday my friend and co-blogger Prof Eric Segall provocatively suggested that the Supreme Court ought to overrule Roe v. Wade and Planned Parenthood v. Casey in the pending Louisiana abortion case, June Medical Services LLC v. Russo. Prof Segall did not argue that those cases are wrongly decided. Rather, his core argument goes like this: the Supreme Court is very likely to overrule its abortion precedents in the next few years anyway; doing so before rather than after the 2020 presidential election will reduce the incentive of religious conservatives to vote for Donald Trump; and therefore an earlier overruling will not further endanger abortion rights but will have the added benefit of eliminating our execrable president.

I noted in a postscript to Prof Segall's post that I disagree with his analysis. Today I explain why.

At the outset, I should say that I very much share Prof Segall's goal of replacing Donald Trump with a president who has even a modicum of decency, compassion, knowledge, intelligence, and judgment. Trump is an existential threat to the survival of the American republic and thousands of its citizens. Indeed, he is more than a threat. His arrogant stupid narcissism has been a major (albeit not the only) contributor to the incompetent federal response to COVID-19 that has already resulted in numerous avoidable deaths. Hence, if I 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, I would seriously consider climbing aboard the Segall train. But I don't, for four reasons.

1) Unearned credibility.  Prof Segall describes himself as "adamantly pro-choice." He says he "would support a constitutional amendment enshrining a woman’s right to choose or any legislation to that effect, local or national." What he does not say--and what he does not believe--is that Roe and Casey are rightly decided. Prof Segall is what I would call a "Thayerian" in constitutional interpretation. That is, he takes a position similar to the one articulated by James Bradley Thayer in a very influential 1893 law review article, namely, that absent a clear mandate in constitutional text and/or history, courts ought not invalidate state or federal legislation. In his scholarship in books and articles, as well as his writing and speaking for a wider audience, Prof Segall criticizes the Supreme Court as "not a court," because in high-profile constitutional cases it makes its decisions based on the individual justices' values and policy preferences, rather than the lawyerly materials of text, precedent, and so forth. Although Prof Segall's own policy druthers are liberal/progressive, his critique is ecumenical, targeting both conservative and liberal judicial activism. Exhibit A in the latter is his criticism of Roe and subsequent abortion rights cases.

To be sure, Prof Segall does not think the Court's abortion jurisprudence is less justifiable than its right-leaning decisions with which he disagrees, so he does not urge what we might call unilateral disarmament. In his perfect world, the Court engages in neither liberal nor conservative judicial activism. He recognizes that we live in an imperfect world, however, and so he does not regard the abortion cases as especially wrong. Nonetheless, it is fair to characterize his views as highly critical of all constitutional jurisprudence not closely tied to text and/or history, including the abortion cases.

Thus, when Prof Segall says the Court should overrule Roe and Casey, he is not saying the Court should make what he regards as a mistake to serve the greater good of defeating Trump. He is saying the Court should do (some of) what he has long thought it should do anyway.

I admit that Prof Segall nonetheless could be right about everything he says in his blog post, even though it aligns with his priors. But the fact that what he advocates aligns with his priors is a reason for readers to indulge some skepticism. Prof Segall wants readers to give him extra credibility when he urges the Court to overrule Roe and Casey because he is pro-choice as a policy matter, but because he is not pro-Roe/Casey as a constitutional matter, he has not earned that extra credibility.

2) Conditionality and Butterfly Effects. Prof Segall's primary argument is conditional: If the Supreme Court is going to overrule the abortion right anyway, it's better that the Court do so sooner rather than later, so that the political system can react, and the system will react in a way that is good for liberals and progressives. There are multiple dubious assumptions in there.

Is it true that the Court is going to overrule Roe and Casey? Maybe, but conventional wisdom--which Prof Segall acknowledges--says it's considerably more likely that the Court will first chip away. Like the Fifth Circuit, the Court might accept bogus distinctions between the Louisiana law and the Texas law the Court (with Justice Kennedy) struck down in Whole Woman's Health v. Hellerstedt in 2016. Or it might overrule Whole Woman's Health as a supposedly mistaken interpretation of Casey but leave Casey in place for now. Or it might surprise us and invalidate the Louisiana law after all.

Meanwhile, the future is always uncertain in all sorts of ways. We don't know the circumstances under which the November election will occur, much less how they will likely affect the outcome. Consider that in the spring of 1992, many people were making exactly the same sorts of arguments Prof Segall is making now--and that they continued to make those arguments even after the Court in Casey retained what it called the "essential" parts of Roe. They said that Casey was worse than overruling Roe because it chipped away (which was true) but left enough of Roe intact to swing the election to the Republican candidate (which turned out to be false). Would we have been better off if the Court had simply overruled Roe in 1992? Would that have energized left/liberals to go to the polls? If the Court overturns Roe/Casey this Term, will religious conservatives exit politics on the ground that they have won all they cared about or will they be energized by a key victory to demand even more?

Armchair political scientists who make confident predictions ignore the incredible dynamism of political opportunism. Long before Republican politicians figured out how to motivate their base with abortion, Nixon was pursuing his Southern Strategy to motivate what became that base around race and crime. If the right loses abortion as an issue in presidential contests, it will double down on race, the grievance politics of the "war on Christmas," same-sex marriage and gay rights, immigration, guns, and more. And that assumes that sending abortion "to the states and the people" would take it out of national politics, which is false. Greater room for legislation would mean greater room for legislation by Congress, not just state legislatures, and presidential candidates would thus continue to take positions on abortion-related issues.

3) Interim Protection. Prof Segall suggests in the alternative that there's nothing to lose from an express overruling of Roe and Casey because the states with pro-life legislatures have made it effectively illegal already, whereas states with pro-choice majorities don't need a federal constitutional right. He's wrong about both points.

Consider the states with the most restrictive abortion laws, all of which are currently not in effect because they very clearly violate Roe and Casey by forbidding abortions well before viability--e.g., after 6 weeks in 5 states and entirely in Alabama. In 2017 (the last year for which I could find state data), over 100,000 abortions were performed in those 6 states. It is fair to assume that thousands of those women would be denied access to abortion entirely if the states in which they live were given the freedom to completely ban abortion. Is the right recognized in Roe or even Casey fully realized throughout the United States? Absolutely not. But would there be substantially less access if those decisions were formally overruled? Almost certainly.

Meanwhile, Prof Segall could well be wrong about continued access in states like California and New York. Abortion is a medical service that Congress can regulate via the Commerce Clause. Perhaps, as I suggested in 2018, Justice Thomas would find abortion beyond the regulatory power of Congress, but I have a hunch that a Republican-dominated Court would find a way to uphold restrictive federal abortion legislation, which would then pre-empt state laws. True, with Democrats controlling the House, there's little chance of restrictive federal abortion legislation, but control could shift.

4) Misreading Roberts. Prof Segall misreads Chief Justice Roberts in various ways that perhaps, but only perhaps, cancel each other out. First, he says Roberts is an institutionalist, a point with which I agree, although the evidence Prof Segall cites is weak. It's Joan Biskupic's analysis of the Roberts opinions in the 2012 Obamacare case, which she describes as "not entirely coherent." That is presumably a reference to the Chief's upholding of the so-called individual mandate under the taxing power. Prof Segall has previously expressed the view that this was somehow a laughably bad argument. It isn't. It's an excellent argument. The Court's precedents had previously recognized that so long as a law has some revenue-generating purpose, it will be sustained as a valid tax, even if it also has a substantial or even primary regulatory purpose. The main--indeed, the only--argument offered by the dissenters on this point is that Congress didn't label the mandate a tax or put it in the right part of the law to be a tax. But that's a form-over-substance point that the Court has long rejected. So there was never any "incoherence" to explain. To be sure, it appears that either law clerks or justices told Biskupic (whom I have long known, liked, and respected) about behind-the-scenes machinations. With only anonymous sources, however, the rest of us don't know how much stock to place in that.

Nevertheless, I agree with Prof Segall that Roberts cares deeply about the Court and how it is perceived. He goes on to say that Roberts doesn't care enough about that to uphold Roe/Casey if push comes to shove. I think that could be right, although Prof Segall's evidence is not exactly airtight. He cites the fact that "Roberts’ wife works for a strongly anti-choice organization." Okay. George Conway is married to Kellyanne Conway. James Carville is married to Mary Matalin. Spouses do not always agree with each other on everything. The most logical inference from Roberts's institutionalism is that if he does think Roe and Casey should be overruled, he will want to go there gradually.

Prof Segall concludes by pitching his column to Chief Justice Roberts: The Chief should recognize that overruling sooner rather than later will harm Trump in the election, he says, and the Chief probably doesn't want to see Trump re-elected.

I have little doubt that the Chief disapproves of Trump's style and basic lack of decency, but I see no evidence that Roberts or any of the other Republican appointees would prefer a Democratic President appointing their future colleagues. A great many Republican voters who dislike Trump nonetheless reluctantly support him because of outcomes they wish to see from his judicial appointees. It's hard to see how justices whose daily work and legacies are directly affected by the President's nominees would not be at least as willing to keep even as despicable a man as Trump in office, given the impact on the courts. So the assumption that Roberts would be persuaded to overturn Roe/Casey sooner rather than later for the purpose of displacing Trump strikes me as extremely far-fetched.

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Sometimes an immediate loss leads to a long-term win, but when the long-term payoff is extremely uncertain, one generally does better with a short-term win or even a short-term relatively small loss, rather than a very big short-term loss.