For decades, conservatives have been chasing the goal of overturning Roe v. Wade, the Supreme Court’s 1973 decision legalizing abortion, while liberals have been warning it could be as few as one Republican-appointed justice away from disappearing.
Monday’s news that the justices, now split 6-3 in favor of nominees picked by Republican presidents, will hear a challenge to the Roe precedent in Dobbs v. Jackson Women’s Health Organization. At issue is Mississippi’s law banning most abortions after 15 weeks and, according to the court, the question of “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
Many conservatives have hoped, and liberals feared, that Roe would be reversed by the high court before. After 12 years of nominations by Republican Presidents Ronald Reagan and George H.W. Bush, the Supreme Court heard a case about Pennsylvania’s abortion laws reconsidering the precedent.
The vicious Senate confirmation battles rejecting Reagan’s pick of Robert Bork and nearly derailing Bush’s nomination of Clarence Thomas were predicated in part on the idea that Roe was hanging by a thread. Instead, the 1992 Planned Parenthood v. Casey decision upheld the earlier ruling’s core holding on abortion rights. Justice Anthony Kennedy, the Reagan nominee the Senate confirmed instead of Bork, wrote the opinion.
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“Even when there is a hope, the reality hasn’t met with the expectation,” said Mallory Quigley, vice president of communications for the antiabortion group the Susan B. Anthony List.
At the time, Republican-appointed justices were split on Roe. The last Democratic nominee who opposed the court’s abortion jurisprudence, dissenting in both Roe and Casey, was Byron White. He was replaced by Ruth Bader Ginsburg in 1993.
Casey did, however, allow more state-level abortion restrictions to be held as constitutional, leading to a proliferation of informed consent and parental notification laws plus new abortion clinic regulations beginning in the 1990s. This decision could also expand the parameters under which states can regulate or ban abortion even if ruling more narrowly than Roe.
Quigley noted the Supreme Court now included “stalwarts like Thomas, [Samuel] Alito, [Neil] Gorsuch and Amy Coney Barrett” and said the country has now had “more than a decade’s worth of pro-life laws that have passed at the state level.”
Supporters of legal abortion also pointed to the conservative justices on the court, especially the three nominated by former President Donald Trump, in highlighting the danger to Roe and their preferred jurisprudence on the issue. Planned Parenthood’s political action committee tweeted that it was “a direct challenge to Roe v. Wade that puts 25 million people at risk of losing abortion access.”
Abortion is a major reason the composition of the Supreme Court has become a top issue in presidential elections. Keeping the seat held by Justice Antonin Scalia, a conservative icon, from being filled by a Democratic president was a major motivating factor for many traditional Catholics and evangelical Protestants in casting a ballot for Trump, whom many had feared to be a thinly veiled social liberal, in 2016. Many liberals voted for President Joe Biden last year in protest of Trump filling the seat held by Ginsburg, who enjoyed a similar iconic status on the Left.
Since the unanimous Senate vote for Scalia in 1986, Republican nominees who were thought to be hostile to Roe have faced a more difficult path to confirmation. The elder Bush’s nominee David Souter, who once voted to uphold the essence of Roe and eventually sided mostly with the liberal bloc on contentious questions, was the last Republican pick to enjoy overwhelming Democratic support.
By the time George W. Bush was president, half the Democrats in the Senate voted against John Roberts for chief justice. This included Biden, a longtime member of the Senate Judiciary Committee, former President Barack Obama, and Hillary Clinton. Only four Democrats voted to confirm Samuel Alito, while 24 supported a filibuster of his nomination. Under Trump, Gorsuch received two Democratic votes, Brett Kavanaugh one, and Barrett none.
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An abortion ruling pleasing to conservatives would likely provoke a range of legislative reactions from congressional Democrats, including the elimination of the Senate filibuster, expansion of the Supreme Court to add more liberal justices, and the enactment of a federal law protecting abortion rights statutorily.
White House press secretary Jen Psaki reaffirmed Monday that “the president is committed to codifying Roe, regardless of the … outcome of this case.” She told reporters that over the previous four years, “critical rights like the right to healthcare, the right to choose have been under withering and extreme attack, including through draconian state laws.”
