A wave of pro-life legislation is sweeping the nation, but will the Supreme Court uphold any of these laws? Under Roe v. Wade and its progeny, no law restricting abortion prior to 20 weeks can take effect, and the lower courts are forced to rule in line with that precedent.
There is a significant consensus among conservatives that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would overturn Roe. Thomas’s opinion from last week on an Indiana abortion law showed his strong opposition to abortion and indicated he is particularly eager to overturn Roe v. Wade, just as he previously tried to do in Planned Parenthood v. Casey in 1992.
But there is a lot less confidence that Justice Brett Kavanaugh and Chief Justice John Roberts would overturn Roe. Kavanaugh is hard to predict because of his lack of rulings on the issue and his newly minted status on the Supreme Court. The chief justice, however, has some history for us to work with.
In Obergefell v. Hodges, the landmark case that federally legalized gay marriage in 2015, Roberts wrote a dissenting opinion arguing that regardless of its potential policy merits, gay marriage had to be decided by states because it was not an enumerated right in the U.S. Constitution. Roberts made a clear claim for 10th Amendment state powers and said, “Allowing unelected federal judges to select which unenumerated rights rank as ‘fundamental’ — and to strike down state laws on the basis of that determination — raises obvious concerns about the judicial role.”
If Roberts applies this logic to abortion, he would have to overturn Roe. The “right to abortion” is nowhere to be found in the U.S. Constitution, nor is the “right to privacy” under which it was justified in Roe. To refuse to overturn Roe would be to “strike down state laws” in the very manner Roberts condemned in Obergefell.
However, there is a key difference between Obergefell and Roe. When Roberts ruled in favor of state powers in Obergefell, he had precedent on his side. But if he rules similarly on abortion, he would have Roe and nearly 50 years of precedent stacked against him.
Hardcore textualists like Justice Thomas are not bothered by this in the least. “Precedent be damned, show me the text!” some say. However, Roberts is not the textualist that Thomas is, as his decision to vote with the liberal justices on Obamacare proved.
When the wave of abortion laws arrives at the Supreme Court, will we see the Roberts who curtails federal control in favor of state powers? Or will we see the Roberts that caves to precedent and is afraid to stir the pot?
