More than 200 Republican members of Congress are on record asking the Supreme Court to “reconsider” and overturn, “if appropriate,” Roe v. Wade, the 1973 landmark decision that legalized abortion and ignited a culture war that continues to animate both major political parties almost half a century later.
Two conservative Democrats joined 168 House Republicans and 39 GOP senators, almost all men (97 percent of the signatories), in signing an amicus brief in a Louisiana case arguing for restrictions that would leave the state with just one abortion provider.
It’s not unusual for lawmakers on both sides of the abortion debate to file an amicus brief. But four years ago, in an almost identical case out of Texas, Republican senators did not ask the Supreme Court to overturn Roe. “Now they’re making that ask,” says Nan Aron, founder and president of Alliance for Justice, a liberal advocacy group. What’s changed? “Two new justices,” she adds. “That’s what changed.”
What the brief indicates is that anti-abortion advocates are no longer pretending they respect the precedent of Roe, and a subsequent decision, Planned Parenthood v. Casey in 1992, that upheld Roe. Emboldened by the increased conservative strength on the Court, the long-held goal of overturning Roe is within reach.
Aron is not that afraid, though. “Not that I think they’re going to do it,” Aron hastens to add. “This is a court that’s very mindful of the polls and public opinion. Seventy-seven percent of the population doesn’t want Roe overturned. It’s unlikely the court would put in motion such a controversial debate before the election.”
The Supreme Court will hear arguments in March in the Louisiana case, called June Medical Services v. Gee, and issue its ruling by June. The assessment of legal analysts, experts, and activists is that while the court is unlikely to overturn Roe in the middle of an election, the newly energized 5-4 conservative majority is likely to flex its muscle by upholding as constitutional the same regulations in Louisiana that it overturned in Texas.
Otherwise, why did it even decide to take the case? Because of those two new justices, says Kathryn Kolbert, who argued Casey before the court. “Arguing before the Supreme Court is a lot like Sesame Street,” she told the Daily Beast. “You have to learn to count. And now they have five votes.”
“There are any number of ways this court could have avoided taking this case, but they chose not to,” Kolbert continued, noting that it takes four justices to agree to take a case, five to win. Most legal prognosticators believe that at a minimum the court will uphold the Louisiana provisions and seriously undermine its ruling in the Texas case just two years earlier. “Others of us think the court could go much further,” says Kolbert.
Aron believes Chief Justice John Roberts would like to see Roe’s demise—that he thinks the opinion was wrongly decided. But she cites his unexpected vote to uphold Obamacare in 2012, avoiding the unknown bombshell consequences of delivering an incendiary decision five months before an election.
All eyes will be on Brett Kavanaugh, the newest justice, when the Louisiana ruling is handed down in June just as the Democratic primaries are concluding. Kavanaugh dissented from a temporary decision that put the Louisiana restrictions on hold while the case was pending, strongly suggesting that he will come down in favor of the tougher restrictions.
The Louisiana case is nearly identical to the 2016 Texas case—Whole Woman’s Health v Hellerstedt—that the court struck down as unconstitutional. Both cases maintain that doctors who perform abortions must have admitting privileges at a hospital within 30 miles. In the Texas case, Justice Anthony Kennedy, Kavanaugh’s predecessor, joined the liberal justices in declaring that the regulations would place an “undue burden” on women.
In the Louisiana case, the 5-4 conservative court, bolstered by the addition of Justices Neil Gorsuch and Kavanaugh, is likely to uphold stricter regulations that the 2016 court rejected in the Texas case as an undue burden. Requiring doctors to have hospital admitting privileges for a procedure that very rarely requires hospitalization would result in a drastic reduction of licensed abortion providers, in effect denying women access through an unnecessary and burdensome regulation.
“It’s not what they’re going to do, it’s how and when they do it,” Florida State University law professor Mary Ziegler told the Daily Beast. She reasons that since Kavanaugh told pro-choice Republican Senator Susan Collins that Roe is “settled law” and a “super precedent,” assurances that won her vote for his Senate confirmation, that he wouldn’t jeopardize her re-election in 2020 by totally abandoning that position.
Likewise, Chief Justice Roberts talks a great deal about how the court is above politics, and a 5-4 decision on such an explosive cultural issue would undermine his argument. “That doesn’t mean they won’t do it anyway,” says Ziegler, author of several books on the history of abortion in America, “but if they did, they would want to make the case legitimately, to do it over a longer period of time and after a series of cases.”
Kolbert told the Daily Beast, “It’s very unlikely Kavanaugh will not support the restrictions before the court. He is the fifth vote to overturn Roe. The only question is before or after the election, whether it helps them or wakes the sleeping giant of women before the election.”
Kolbert continued: “Lawyers are very good at confusing people. They don’t need to say, ‘We’re overturning Roe.’ They give states more latitude with restrictions, and they bar doctors and providers from suing on behalf of women—that’s the functional equivalent of overturning.”
In her view, it comes down to “optics and politics.” She’s 67, she’ll be 68 in April. New York state legalized abortion in 1970, 50 years ago. “Anybody younger than me for the most part has lived in a time when abortion is safe and legal—at least two generations of women,” Kolbert says. “It’s hard for the youngest women of childbearing age to even fathom they couldn’t have a safe and legal abortion. Expectations are very different.”
Imagining how the justices weigh these considerations, assuming they do, Kolbert points to the late Justice Harry Blackmun’s papers that were made public after his death in 1999. Blackmun had written the majority opinion for Roe in 1973 and worked to uphold it with Casey in 1992.
When an initial vote among the justices showed a 5-4 majority to overturn Roe, then Chief Justice William Rehnquist wrote a draft opinion saying that anything to protect fetal life is a rational reason to criminalize abortion. That’s when Justice Sandra Day O’Connor, the only woman on the court, stepped in to save the day with the “undue burden” rationale that prompted Justice Kennedy to switch his vote and uphold Roe.
The undue burden test ended up having more teeth than anyone imagined at the time. Its preservation—even more than Roe—is now on the line.