When Republican senators confirmed Amy Coney Barrett to the Supreme Court, Democrats immediately turned the volume up on their threats of retribution.
Senate Minority Leader Chuck Schumer denounced the vote, which succeeded on partisan lines, as “one of the darkest days” in Senate history. His colleague, Rhode Island’s Sheldon Whitehouse, called the whole process illegitimate and threatened that Republicans would “rue the day” when Democrats retook control of the Senate. Over in the House, Rep. Alexandria Ocasio-Cortez prescribed her party a remedy: “Expand the court.”
The temptation of court-packing, long a liberal pipe dream, gained new popularity after President Trump nominated Barrett. It is a direct reaction to the often-unspoken but very real fear that Democrats hold about a conservative supermajority on the court, namely, that it will lead to an overthrow of Roe v. Wade. All throughout Barrett’s hearings before the Senate Judiciary Committee, Democrats tried to nail her on the landmark abortion case while arguing that, unlike Neil Gorsuch or Brett Kavanaugh, Barrett would tip the balance since, as the successor to liberal icon Ruth Bader Ginsburg, she would increase the number of conservative justices on the court.
Whether she actually will is an open question. The court has not yet accepted any cases pushing against Roe this term, although Mississippi, sensing an opportunity, did file one just days before Barrett’s confirmation. And Barrett, like any originalist, refuses to state her views on Roe, claiming that, as a sitting judge, she cannot comment on cases that are open to challenge. Still, that opinion alone, which implicitly does not defer to Roe’s precedent, sounds alarm bells that, if presented with the right case, Barrett and other court conservatives will read abortion rights out of the Constitution.
Does the hypothetical deserve such agonizing? The fallout from such a move, in fact, would not be nearly as apocalyptic as abortion’s fiercest defenders predict. Abortion would not become illegal. Its regulation would simply become a state issue, as it was prior to 1973. And states on both sides of the fight are already gearing up for that likelihood.
In the wake of Kavanaugh’s confirmation last year, which gave conservatives a tenuous majority on the court, New York, Maine, Vermont, Illinois, and Rhode Island all firmed up abortion protections and expanded access. Virginia followed suit this summer, after a dramatic failure to do so in 2019. Leana Wen, the former president of Planned Parenthood, praised these measures as a “critical backstop” against the conservative assault on abortion rights.
On the other side, state legislatures in Missouri, Alabama, and Tennessee doubled up on the victory with stringent restrictions on abortion. These laws, which essentially outlaw abortion through regulation, have the potential to provoke challenges to Roe (or its counterpart, Planned Parenthood v. Casey), as happened this year when the court heard a case disputing a 2014 Louisiana law making it virtually impossible to procure an abortion.
The decision in the case, June Medical Services v. Russo, was at the time a major disappointment for the anti-abortion scene. Chief Justice John Roberts joined the liberal minority to deliver a 5-4 decision supporting Roe. But now that Barrett is on the court, and with Kavanaugh and Gorsuch on the record with their anti-Roe votes, conservatives have more hope this tactic will work next time.
“Who names the next justice wins,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, the most influential anti-abortion group, after Roberts joined the liberals in the June decision.
And if that strategy succeeds, researchers at the Susan B. Anthony List say they have plans to expand the post-Roe abortion fight at the state level. Pro-choice states that are preparing for a Supreme Court-level wipeout will be tough to crack. Vermont, Oregon, and the District of Columbia will be nearly impossible since they have enshrined full abortion access in their constitutions. But there are a few states — Arkansas, Mississippi, and West Virginia, for instance — where the fight could be over as soon as it begins. These states, as well as six others, have pre-Roe abortion bans that can be enforced immediately if the decision is ever overturned.
It’s that possibility, as well as the fact that eight other states have passed abortion bans intended to take effect post-Roe, that has abortion advocates worried. A September report from the Guttmacher Institute, which tracks abortion access throughout the country, warned that a six-justice conservative majority on the Supreme Court could prove “devastating” for reproductive rights. When Barrett was confirmed, multiple Planned Parenthood spokespeople warned of the “direct threat” she posed to abortion access. Democratic leaders in both the House and the Senate released statements to a similar effect.
None of these worries are new, But Barrett’s ascension really does represent the first time in many decades that conservatives have control over the court. More than anything, however, the Democratic fretting reveals the fundamental weakness of Roe. The decision, far from settling the abortion issue, has only postponed the inevitability of a fight in which each individual state must decide where it stands. And it only takes one case to reset the clock.
Liberal and conservative critics of Roe have pointed out that flaw since the decision was made. In one of the most forceful liberal cases against Roe, published a week afterward, the editors of the New Republic argued that the court had made a grave mistake in forcing abortion on the entire country.
“If the Court’s guess concerning the probable and desirable direction of progress is wrong, it will nevertheless have been imposed on all 50 states, and imposed permanently, unless the Court itself should in the future change its mind,” they wrote. “Normal legislation, enacted by legislatures rather than judges, is happily not so rigid, and not so presumptuous in its claims to universality and permanence.”
Presumptuous was, and still is, the right adjective for the court’s actions. Before Roe, many states were already easing up on abortion, and the country was trending in favor of the practice. Now, in large part because of Roe’s consequences, the tables are turned. More than 20 states have moved toward restricting abortion, according to Guttmacher.
And the issue is a serious political motivator, for both Republicans and Democrats. Trump frequently promises his anti-abortion supporters more victories if granted a second term. And Democrats, fearful that Roe is imperiled, are at least willing to explore court-packing in a last-ditch effort to keep it in place.
But at this point, the future of national abortion access is likely beyond the scope of electoral politics and in the hands of the Supreme Court. If it strikes down Roe, the battle won’t be over. It will have just begun.
Nicholas Rowan is a staff writer for the Washington Examiner.
