CNN legal analyst Jeffrey Toobin, no stranger to hyperbole, has declared Roe v. Wade “gone” after the signing of the Alabama abortion law, but in reality, it’s much more accurate to say that for the first time in nearly 30 years, its survival is uncertain.
This is a very important distinction.
“Roe v. Wade is gone, and every woman in Alabama who gets pregnant is going to be forced to give birth soon,” Toobin said on CNN.
He continued, “The legislators were very smart. They waited until they got five votes on the Supreme Court, and now they’re going to push this thing through, and Brett Kavanaugh, and Neil Gorsuch, are going to be joined by Chief Justice John Roberts, and Clarence Thomas, and Samuel Alito, and this is a victory that Rick [Santorum] and others have been fighting for for decades, and they’ve won. And they should celebrate.”
Toobin is a successful TV analyst because no matter how many times he’s been wrong, he always confidently makes bold predictions on the outcomes of Supreme Court cases, which most other legal experts are careful to hedge. For instance, there was time when he said, after the Obamacare oral arguments, “it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is: Does the whole law go out the window with it?” His prediction generated a ton of headlines and created a sense of panic on the left and euphoria on the right. But he turned out to be incorrect.
In reality, Toobin doesn’t know what the future holds for Roe v. Wade, and legislators in Alabama and Georgia do not have some special insight into Kavanaugh’s mind. What’s changed is that there might be a chance to overturn Roe v. Wade, which there hasn’t been since 1992. That was the year that the Supreme Court reaffirmed Roe in Planned Parenthood v. Casey. Between that point and Kavanaugh’s confirmation, we’ve known that there were at least five votes to uphold Roe.
The reason is that Byron White, who voted to overturn Roe, was replaced the following year by Justice Ruth Bader Ginsburg, who would obviously uphold it. So that meant that the replacement of Sandra Day O’Connor with Justice Samuel Alito did not get anti-abortion opponents to five votes. It wasn’t until Justice Justice Anthony Kennedy, who had upheld Roe in the Casey decision, retired and was replaced by Kavanaugh that the future of Roe became a question mark.
But that’s all it is — a question mark. We know for sure that right now there are four votes to uphold it. It’s hard to predict whether abortion opponents will be able to run the table with the other five justices. The only justice we could say with near certainty would strike down Roe would be Thomas, who voted to overturn it before and has shown a willingness to strike down precedents he believes are poor. Beyond that, it’s largely a guessing game. There may be reason for a high degree of confidence that, say, Alito would strike it down. But Roberts in particular is questionable.
Toobin’s analysis also makes it into an all-or-nothing proposition. He’s presenting it as if the option is, they either uphold the Alabama law, or uphold Roe. But the Supreme Court has many options and has generally shown an interest in making gradual changes. Justices could easily decline to hear the Alabama challenge, and instead pick a less restrictive state law to consider. There’s plenty of room between Alabama and Roe for justices to revisit abortion law without having to immediately strike down the whole thing.
Given how political Roberts behaved during the 2012 Obamacare case and the obvious ramifications of overturning Roe, the safest bet would probably be on him preferring some sort of incremental change to Roe, if he’s willing to make any changes to it at all. However, betting on the outcome of judicial cases is foolish, and there is certainly no justification for Toobin’s extreme certainty that Roe is “gone.” And I say this as somebody who hopes that it does get struck down.
