By Scott Lemieux
If Donald Trump’s Supreme Court nominee Brett Kavanaugh is confirmed, he will play a decisive role in whether the new Supreme Court will dramatically overrule the landmark case of Roe v. Wade, ending the abortion rights granted to U.S. women in 1973. But the real question is not about Roe or the Republican agenda – it’s about whether the court will allow states to effectively ban abortion.
Trump’s new pick for the bench is a conservative Washington insider who is expected to be hostile to reproductive rights. Given that overruling Roe is one of the top goals of the conservative movement, and the retirement of Justice Anthony Kennedy removes his pivotal fifth Supreme Court vote on abortion issues, one might think that overturning Roe will now be a top priority for anti-abortion activists. That may indeed be so. However, some have argued in the days since Kennedy announced his retirement that Roe is safe – either because Republicans would like to keep the ruling to use as a punching bag or because the court needs to follow the precedent set by previous court decisions.
These arguments are misleading. Whatever the Republican leaders and the Republican-nominated new Supreme Court justice will want, it’s critical to pay attention to how the Supreme Court will view how states regulate abortion rather than whether it will immediately overrule Roe.
Republican politicians and activists have an interest in suggesting that the overturning of Roe remains uncertain, if only to reassure pro-choice senators Susan Collins of Maine and Lisa Murkowski of Alaska, whose votes are among those needed for Kavanaugh’s confirmation. But some pundits who don’t support overruling Roe have made this argument too. “[O]nly Clarence Thomas would likely vote to overturn Roe v. Wade,” according to Kathleen Parker of the Washington Post. Roe is “not getting overruled,” asserts David Lat at Above the Law. William Saletan argues at Slate that Republicans don’t really want Roe overruled.
Saletan’s argument might seem persuasive at first glance. The Supreme Court has, after all, been controlled by justices nominated by Republican presidents publicly opposed to Roe v. Wade since 1991, so a conservative bench is not new. Roe is popular – a recent Kaiser Family Foundation poll found that two-thirds of Americans want to keep it – and as Saletan demonstrates, the battle for reproductive freedom intensifies when Roe is perceived to be under threat.
But the argument doesn’t withstand sustained inspection. Remember that Roe’s (partial) survival under Republican Supreme Courts is essentially a fluke, a combination of contingencies that is unlikely to be repeated next time, not a careful plan by Republican party elites to preserve Roe.
Consider Planned Parenthood v. Casey, the 1992 case that re-affirmed Roe while giving states more leeway to regulate abortion. Four justices believed that Roe should be overruled and two that it should be kept as is. Roe was saved, then, by a plurality opinion written by three justices: Sandra Day O’Connor, Anthony Kennedy, and David Souter. Looking at how these justices got to the court shows that Roe’s survival was not the product of a grand strategy.
Most importantly, Kennedy, the crucial vote, was only on the court because Ronald Reagan’s first choice – the fiercely anti-Roe Robert Bork – was voted down by the Senate. Had Reagan nominated Bork while Republicans still controlled the Senate, Roe would have been dead before George H.W. Bush left office.
And O’Connor and Souter are the product of another political era. Reagan nominated O’Connor, although she was known to be a moderate on abortion, to fulfill his pledge to nominate the first woman to the Supreme Court. Souter, who started out a moderate and became an outright liberal, was the nearly random product of political conflict within the Bush administration. Some officials within the Department of Justice distrusted the solidly conservative Ken Starr over a minor disagreement, and the first President Bush settled on Souter in large measure because two of his most influential advisers knew and admired Souter from New Hampshire.
The problem with expecting another Souter or O’Connor to save Roe, in short, is that an entire movement has sprung up to ensure that another Souter or O’Connor is never nominated, and Trump is following their advice to the letter.
It is true, as far as it goes, that Chief Justice John Roberts’ court is unlikely to overturn the Roe v. Wade ruling before the 2020 elections. But the Supreme Court can nonetheless allow states to effectively ban abortion without explicitly overruling Roe. Many states have already successfully experimented with regulations that target abortion clinics, making it difficult or impossible for them to operate. Six states have only one remaining abortion clinic in part because of the oppressive regulatory framework.
In its 2016 decision in Whole Woman’s Health, the Supreme Court struck down a particularly harsh Texas law that would have required a majority of the state’s abortion clinics to close although there was no reason to believe that any of them were unsafe. It is virtually certain that the post-Kennedy court would have upheld the same law or even a more draconian version. And whether the opinion makes it explicit or not, this would be the de facto end of Roe v. Wade. A theoretical right to abortion means little to a woman who lives in a state in which she cannot obtain one – especially if the composition of the new court emboldens other states to pass similar legislation.
The slow strangling of Roe v. Wade could be a win-win for Republicans: a woman’s right to obtain an abortion essentially eliminated in many states, while Roe theoretically remains good law. But analysts of the court and advocates for reproductive rights shouldn’t let them get away with it. What matters is what the court does, not what it says. And what Republican leaders want is to curtail abortion – with or without Roe.