Is the US Supreme Court really about to ditch Roe v Wade?

On Wednesday, the US Supreme Court heard arguments in relation to the constitutionality of a Mississippi law that bans abortions after 15 weeks of pregnancy. It is expected to issue an opinion in the case no later than June of next year. Whatever that opinion contains, it will be momentous, one way or the other.

The last time the United States Supreme Court considered the constitutionality of abortion was in 1992, in Planned Parenthood versus Casey. Then, pro-lifers were very optimistic that the court would overturn Roe v Wade, and had many reasons to be optimistic: The court, in 1992, had a clear 5-4 majority of Republican appointed conservatives: Chief Justice Rehnquist, and Justices Scalia, Thomas, Kennedy, and Day-O’Connor. The arguments before the court had, to most observers, gone well for the pro-life side.

What actually happened, when the ruling came out, was a big step in the other direction: Two of the court’s conservatives (Kennedy, and O’Connor) sided with the liberal Justices – not only upholding Roe, but strengthening it considerably. Justice Thomas joined Scalia’s scathing dissent.

Thirty years later, Justice Thomas is the only surviving member of that 1992 conservative majority who remains on the bench. Three others – Kennedy, Souter, And O’Connor – have retired. Scalia and Rehnquist have died. But remarkably, as much as things have changed, much has stayed the same.

The court presently has a 6-3 majority of Republican appointed conservatives: Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett. The arguments in front of the court on Wednesday went about as well as might be expected for the pro-life side. The indispensable (if you are interested in this stuff) Ed Morrissey from reports:

After listening to the argument (in part) and following along the reactions, I’m at least a little more optimistic that a majority may emerge to strip Casey from precedent, if not Roe and Doe itself. The only reasonably strong argument from preventing that is the reliance principle — that these cases are so old that too many people have relied on those decisions for them to be overturned. Andy McCarthy noted that the pro-abortion side have largely abandoned the idea of defending Roe‘s constitutionality:

Given that the pro-abortion litigants are demanding an all-or-nothing outcome, it seems more likely that we’re looking at a 6-3 decision to overturn Roe and all its successors, or a 5-4 decision in either direction.

Read his whole piece for a full account of the arguments the court heard.

As Ed says, the interesting thing to come out of Wednesday’s arguments was this: That the area of contention was not really whether Roe V Wade is, in fact, constitutional. There was, as Ed notes, no real defence of the 1967 decision offered either by the litigators, or the more liberal judges. Instead, the argument focused on two things: Precedent, and the reliance principle.

Precedent, simply, is the notion that it is a bad idea for courts to reverse themselves, even if they were wrong previously, on the basis that it introduces uncertainty into the law, and makes the courts political. The basic idea is that if a 6-3 conservative court overturns Roe, then a 5-4 liberal court in the future might simply reinstate it, making the courts more a political than legal institution.

The second argument is the reliance principle: This postulates that even if a decision is terrible, when that decision leads people to rely on it significantly in their day to day lives, overturning it becomes activism, and disruptive.

It’s important to note here that for a conservative – even a pro lifer – these are important arguments, which deserve serious consideration.

The problem, though, is that nobody seriously argues that Roe v Wade was a legal decision of much merit in terms of the law. It created not only a right to an abortion, after all, but a whole legal framework around it out of whole cloth – specifying gestational limits, for example – which is the work of a legislature, not a court.

The conservative Judges heard arguments on Wednesday that rather than settling the abortion issue, Roe V Wade was an act of the court which disenfranchised voters across the US: After all, if Mississippi wishes to restrict abortion to 15 weeks, why do Mississippi voters not have that right – as Irish voters do?

Nobody should predict what the US Supreme Court will, or will not do, as the Casey decision in 1992 demonstrates. To a pro-life activist, the arguments about precedent and reliance might have little weight, but Judges will consider them carefully, and take their time to come to a decision. But for what it’s worth, this pro-lifer is pretty optimistic that, at minimum, the Supreme Court will move to dramatically weaken Roe v Wade and offer voters more choice on the issue of abortion. That can only be good news for those American pro-lifers who, after all, only want the option to make their case to the voters that human life is worthy of protection. Getting rid of Roe does not end abortion in the US – far from it. All it would do would be to throw the issue back to voters for a decision, on a state by state basis.

It is hard to argue against that – which might be why the pro-Roe side found it so difficult to make a case, this week.

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