Justice Stephen Breyer on Monday handed down a dissenting opinion strongly suggesting that his Republican colleagues are about to overrule Roe v. Wade. In at least some circles, however, Breyer’s warning appears to have sparked as many calls for calm as for alarm. Consider the views of Laurence Tribe, a Harvard law professor and one of the preeminent constitutional scholars of his generation, calling on Americans not to panic.
Overruling Roe and Casey would upset much deeper and broader societal reliance interests than the “case-specific costs” deemed insufficient in Franchise Tax Bd. v. Hyatt to preserve Nevada v. Hall. So there is cause for concern but not panic.https://t.co/KT8xHqzqxz
— Laurence Tribe (@tribelaw) May 14, 2019
With all due respect to Professor Tribe, now is the time for supporters of reproductive rights to panic.
Not only is a decision gutting Roe v. Wade becoming increasingly certain, but signs also point to the possibility that it will come down in June 2020 — just in time for the next presidential election. That’s because even if some of the Supreme Court’s Republicans would prefer to put off this question until after the election, anti-abortion state lawmakers and lower court judges are forcing their hand. In fact, some of the lawmakers behind recently passed anti-abortion legislation in Alabama and Georgia have been quite explicit that the purpose of this legislation is to make the Supreme Court overrule Roe.
There are many ways to kill Roe
There are many ways the Supreme Court could eliminate the right to an abortion. The most honest way to do so would be to write the words “Roe v. Wade is overruled.” That would at least have the virtue of communicating clearly to American voters what just happened.
But there are also a whole slew of dishonest ways to render Roe a nullity. In 2013, for example, Texas enacted a law that imposed expensive and unnecessary architectural requirements on abortion clinics, while also requiring abortion providers to obtain a difficult-to-acquire credential in order to perform abortions within the state. The Supreme Court struck the law down in Whole Woman’s Health v. Hellerstedt, explaining that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” and therefore are unconstitutional.
Whole Woman’s Health, however, was a 5-3 decision — and all three of the dissenters still sit on the Supreme Court. Now that two Trump judges also sit on that court, that’s five votes to hold that a state may impose entirely superfluous regulations on abortion providers — regulations that serve no purpose other than to drive up the cost of operating a clinic until it is financially impossible to do so.
Texas could pass a law requiring all abortion clinics to be made of solid gold. Or requiring all abortion providers to attend a 100,000-hour training course that can only be taught by Vice President Mike Pence. That wouldn’t be an explicit ban on abortion, but it would be effectively the same thing.
Abortion opponents remain committed to the Texas strategy. Indeed, in 2014, Louisiana enacted a law that is identical, almost word-for-word, to the Texas law at issue in Whole Woman’s Health. Then, just days before Trump successfully placed anti-abortion judge Brett Kavanaugh on the Supreme Court, the conservative United States Court of Appeals for the Fifth Circuit upheld that identical law in June Medical Services v. Gee — regardless of the earlier ruling in Whole Woman’s Health.
This act of defiance is well-calculated to force the Supreme Court to take up June Medical. Many court-watchers — including myself — believed that the Supreme Court would deny an emergency request to stay the Fifth Circuit’s decision. Had the high court denied that request, it would have sent a clear message to every lower court judge in the country that they are free to ignore Whole Woman’s Health and similar decisions protecting the right to an abortion.
As it turns out, Chief Justice John Roberts did not want to send that message, and he joined his four liberal colleagues in a decision temporarily blocking the Louisiana law.
That decision, however, is likely to be very temporary. It lasts only until the Supreme Court has time to hear the case in full. If the court decides to give the case a full hearing, Roberts is still overwhelmingly likely to uphold the Louisiana law. His vote to stay the Fifth Circuit’s decision is best read as a statement about his own supremacy — “you don’t get to overrule Roe v. Wade, only we get to overrule Roe v. Wade!”
If the Supreme Court decides not to give June Medical a full hearing, the temporary stay will expire and the Fifth Circuit’s decision will stand.
The Supreme Court, in other words, must do one of two things. Either it must hear the June Medical case — and there are almost certainly five votes to overrule Whole Woman’s Health. Or it must refuse to hear June Medical, in which case it will tell every anti-abortion judge in the country that they are free to ignore the Supreme Court’s abortion rights decisions.
If the Supreme Court hears the June Medical case, there is plenty of room for it on next term’s calendar. In a typical term, the court hears about 70 cases. It’s only agreed to hear 15 so far. That means that a decision would likely come at the end of June 2020.
Depending how the June Medical case proceeds, the Supreme Court could kill Roe in one of three different ways:
- The court could overrule Roe openly and honestly in the June Medical case.
- The court could effectively gut Roe in June Medical, by holding that states are free to enact laws whose only purpose is to make abortion clinics so expensive to operate that they have to shut down.
- The court could refuse to hear the June Medical case, and tell anti-abortion judges that they don’t have to obey the Supreme Court’s abortion rights decisions in the process.
One way or another, Roe becomes a dead letter. It could happen very fast. And it is likely to happen just months before the 2020 election.