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Dobbs on the Docket: Will SCOTUS Kill Roe v. Wade?

The only way to guess the fate of Roe v. Wade, and abortion in America, is to analyze how the SCOTUS justices vote

The most important Supreme Court case of the 2021 term is Dobbs v. Jackson Women’s Health Organization, Case No. 19-1392. Beyond being the most closely watched case of this year, Dobbs is the most important abortion case in nearly fifty years, since Roe v. Wade was decided in 1973. In those fifty years, there have been many other important abortion cases, but Dobbs is one of only two that has squarely raised the question of whether Roe v. Wade should be put on the chopping block as a jurisprudential mistake (the Supreme Court does sometimes make them)—the other being the disappointing failure of Planned Parenthood v. Casey, decided in 1992.

What is Dobbs about? In short, the people of Mississippi passed a law prohibiting abortions after fifteen weeks’ gestation, except in the case of medical emergency or fetal anomaly—plainly in violation of Casey, which prohibited governments from banning abortion before fetal viability (approximately twenty-four weeks). Both the district court in Mississippi and the Fifth Circuit (covering Texas, Louisiana, and Mississippi) struck down the law. The Supreme Court then took up the case to address the following question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”

The Supreme Court, being the highest court in the land, sets its own rules due to the simple fact that there is no court or body above it to check it when it errs. In that sense, it can answer this question however it wants, as narrowly or as broadly as it wants. With such a wide spectrum of possibilities, the only way to predict Dobbs’s outcome is by analyzing the Court’s individual justices. The media often tout how there is a conservative super-majority on the court, six of the nine justices being appointed by Republican presidents. But Casey was decided by five Republican-appointed justices—and the only Democrat-appointed justice, a staunch pro-lifer, was one of the four dissenters.

Only one justice on the Court now was present during the Casey decision: Clarence Thomas (Bush I: 1991), another dissenter and therefore good vote in Dobbs. The three current Democrat-appointed justices—Stephen Breyer (Clinton: 1994); Sonia Sotomayor (Obama: 2009); and Elena Kagan (Obama: 2010)—have issued opinions firmly in support of abortion. Since he was appointed, Justice Samuel Alito (Bush II: 2006) has been firmly pro-life and has authored dissenting opinions arguing that Roe and Casey should be overruled.

The votes of the above justices in Dobbs are not really in question. This leaves Chief Justice John Roberts (Bush II: 2005) and the three justices President Trump appointed: Neil Gorsuch (2017), Brett Kavanaugh (2018), and Amy Coney Barrett (2020).

It has become fashionable in conservative legal punditry to criticize Roberts for his sometimes moderate votes. Most notably, in 2020, he voted with the liberal justices to strike down an abortion restriction in June Medical Services LLC v. Russo, since it was identical to a restriction held unconstitutional in 2016. It seemed that Roberts balked at the public perception that the validity of the regulation would turn entirely on the fact that Gorsuch and Kavanaugh had been appointed to the High Court.

In 2020, Roberts also joined the Democrat-appointed justices in refusing twice to strike down COVID-19 restrictions on churches in South Bay United Pentecostal Church v. Newsom I (May 2020) and Calvary Chapel Dayton Valley v. Sisolak (July 2020). He even joined with the liberal justices in dissent when the Court did eventually strike down those restrictions in Roman Catholic Diocese of Brooklyn v. Cuomo (Nov. 2020). But after that time, he joined the six-justice majority opinion striking down California’s restrictions on churches, which flouted the majority opinion in Diocese of Brooklyn, in South Bay United Pentecostal Church v. Newsom II (Feb. 2021).

What does this mean for Dobbs? It’s hard to say. Beyond these opinions, Roberts has been nearly uniformly good on pro-life and freedom of religion cases, so it’s hard to argue that he does not really believe in them. Some have speculated that one of Roberts’s primary professional goals is to get rid of Roe and Casey—and have it stick—and he believes that that can happen only if people truly believe in the authority and prestige of the High Court. If the Court is simply composed of a bunch of partisan hacks, then the abortion issue will never be settled. This could simply be naïve optimism, but we count Roberts as a good vote in Dobbs.

What about Gorsuch? Of the three Trump appointees, he has been the most uniformly conservative in his legal jurisprudence, often joining the opinions of Thomas and Alito. And he has been bold—he is not afraid to take action simply because it will upset the status quo in a monumental way. In McGirt v. Oklahoma (2020), Gorsuch joined the liberal justices and authored an opinion holding that approximately half of Oklahoma is technically part of Indian reservations, subject to the control of Indian tribes. This obviously caused great upheaval in Oklahoma and was criticized on that basis, but Gorsuch was not persuaded. He also joined the dissenters in South Bay I and wrote his own dissenting opinions in Calvary Chapel and South Bay II (in the last case, he thought more of California’s restrictions should be struck down).

This lack of fear is important. Although many believe that the court-packing rhetoric of the past year is irrelevant, we disagree. In the past year, the Supreme Court has made a conscious effort to issue unanimous opinions (9-0). While this could be part of Roberts’s vision to instill more respect for the Court before gutting Roe and Casey, it could well also be part of an effort to push back against the court-packing rhetoric. Thus, in light of Gorsuch’s conservative jurisprudence, and boldness, we count him as a good vote in Dobbs.

This leaves Kavanaugh and Barrett. For these two, neither their past opinions nor our personal experience provides any unique insight. The only comment we can provide is that for Kavanaugh, a point few have caught is that he reversed himself between South Bay I and II, a case we litigated. In the first opinion, in May 2020, he authored the dissent arguing that California’s permission of only twenty-five percent capacity for churches was unconstitutional, but by South Bay II, he split from the other conservative justices, who thought there should be no capacity caps on churches, and held that twenty-five percent capacity was okay. The reason why is not clear, but perhaps it is easier to write a scathing dissenting opinion that does not actually change the law.

As for Barrett, her first opinion as a justice was written in South Bay II, where she refused to strike down California’s ban on singing in worship, stating, oddly, that if the facts were as the church represented, then they were unconstitutional but questioning whether they were. In response, California quickly dropped its singing ban, but not under direct judicial pressure.

As with most others watching Dobbs closely, we believe that the breadth or narrowness of the ruling comes down to Kavanaugh and Barrett.

If Roe v. Wade is not directly overruled, but modified, then the question of “whether all pre-viability prohibitions on elective abortions are unconstitutional” allows for limitless outcomes from very narrow to very broad. However, if the Supreme Court simply issues a narrow ruling—i.e., that Mississippi’s fifteen-week abortion ban is constitutional without promulgating any broad rule—the result would be to make the High Court the arbitrary decision-maker as to whether an abortion regulation or ban is okay or not, and we do not believe that the Court wants to be in that position. On the broader side, no legal pundit of which we are aware has come up with a real replacement for Roe and Casey that can be expanded and applied logically by lower courts.

So it seems that either Roe and Casey stay or they go—there is no way to split the baby. Whether Kavanaugh and Barrett have the gumption to see them go is the question whose answer we do not have.

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