Most times, when the press has a freak-out over the Supreme Court’s decision to hear a case, it’s hyperbole meant to move clicks. That’s not true for the latest decision by the high court to listen to a blockbuster case on the topic of abortion.
It’s no hyperbole to say that the opinions that come out of Dobbs v. Jackson Women’s Health could be the most important in decades.
This litigation has the potential to be a blockbuster case because the question the Supreme Court wants to be answered by the parties places everything onto the table — including whether Planned Parenthood v. Casey and Roe v. Wade continue to stand as valid legal precedents.
When the case was submitted to the Supreme Court on appeal, three questions were presented to the justices. They granted certiorari on the first question only. That question is simple: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
It’s an extremely broad question — so broad, in fact, that it brings into question the legitimacy of both the Roe and Casey decisions, something no one could have predicted a year ago. Unlike prior cases that dealt with issues around the edges of the abortion topic, this case hits the central question directly.
This is also the first case on abortion we’ve had in decades without the late Justice Ruth Bader Ginsburg on the bench and the first with her replacement, Justice Amy Coney Barrett.
The other potentially politically radioactive ripple effect this decision could have is on the upcoming elections. The Supreme Court is set to make this case part of their arguments and decisions for the fall 2021/spring 2022 term. That means we could have a potentially generational ruling on abortion just before midterm elections that impacts voter turnout and gives impetus to partisans on both sides of the issue to make abortion a central topic of their campaigns.
Given the broad nature of the case and the question asked, plus the high court’s new composition, it’s fair to ask how far the Supreme Court could go. Suppose the court did overrule the Roe and Casey precedents, which would be a reasonable decision. In that case, it could simply return the issue to the states.
What that would mean is that states would be free to choose how to handle the problem. The federal government could do the same thing. All of this means there could be an explosion of legislation across the board on this single topic, including ballot initiatives.
This was the late Justice Antonin Scalia’s position, outlined in his dissent of Casey: “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
Scalia ended that dissent by saying, “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”
The “We” in that sentence refers to the Supreme Court. If conservatives have a majority on court willing to overturn these precedents, it’s hard to see them ignoring that warning.
If you genuinely believe, as we know Chief Justice John Roberts and others do, that the politicization of the court is one of the worst developments in recent memory, getting the court out of this topic is the only way forward.
There is a strain of conservative jurisprudence that argues that the court got it exactly wrong in cases like Roe and Casey, and the exact opposite is true. They say that the 14th Amendment protects prenatal humans. Under that reading of the Constitution, abortion should be banned under the Constitution itself.
That option would also be open to the Supreme Court, but it is doubtful the justices would flip from one extreme to another in just one case. Merely overruling Roe or Casey and letting states chart the path forward would be the easiest way out for the court.
Another solution is choosing not to overrule Roe or Casey but weakening them to such an extent that states could curtail abortion in ways thought impossible previously. What this looks like exactly would be impossible to tell because most mainstream legal scholars on the right agree with Scalia and accept that the Constitution doesn’t deal with the topic of abortion and must be left to the states.
Of course, the doomsday scenario for the right is that nothing happens to abortion law, and the Supreme Court merely affirms current precedent. Suppose that happens with the current makeup of the court. In that case, the only possible path forward is a constitutional amendment to overrule all the court’s rulings on the issue. The political ramifications on the right if conservative justices didn’t address the matter would ripple for generations.
For my part, I do believe the justices will address it head-on. The decision to answer the first question and only the first question indicates the court wants to manage its jurisprudence in this area, which is murky at best.
The next question is just how far do they go. For the answer to that, stay tuned for oral arguments next term.