Justice Antonin Scalia once wrote about a 1988 Supreme Court decision that while some controversies came before the court “clad, so to speak, in sheep’s clothing,” in that case, “this wolf comes as a wolf.”
When it comes to the right’s 45-year project to overturn Roe v. Wade and the opportunity presented by Justice Anthony M. Kennedy’s retirement, the question is not whether the wolf is at the door, but whether he’ll bother with a disguise.
You will hear, this week, that abortion rights advocates are being hysterical. A certain amount of disingenuousness has long larded conversations about abortion and the court, but the gaslighting since Kennedy announced his retirement has been unusually shameless. (President Trump said he will announce his nominee July 9.) Fearing Roe’s end, claimed Carrie Severino of the Judicial Crisis Network — as crucial a group as any in getting Trump’s judges confirmed — is “a lot of scaremongering. . . . And I think it’s unlikely that the court would ever get that square question presented to it anyway.” Trump dropped the usual campaign code words in 2016 to openly promise to appoint justices who would overturn Roe and even provided a list of potential picks. In office, though, he’s suddenly learned to stick to talking points, now claiming he won’t ask prospective nominees about their stance on it.
Don’t be fooled. Trump purchased conservative loyalty with his judicial appointments — by their own account, it’s how he got antiabortion leaders to switch from urging supporters to vote for anyone but Trump to heading his “Pro-Life Advisory Committee” in the span of months — and he has been unusually faithful in keeping up his end of the deal. In the same breath that conservative legal activists insist they aren’t demanding any particular result on abortion, they exult in the chance to hack at Roe and reassure one another that a given member of Trump’s shortlist is not a heretic on abortion.
Sure, conservatives have to provide rhetorical cover for the two abortion rights moderate Republicans in the Senate whose votes will be pivotal to any nominee, Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska). But these activists aren’t stupid — even if they’re acting like we are.
The real argument among the people trying to ban abortion in the future is over strategy and pace, long the subject of fierce debate in antiabortion circles. Should opponents of abortion rights go incrementally (restrictions on clinics passed in the name of safety, 20-week bans premised on disproved claims of fetal pain, days-long waiting periods) or for politically cathartic but heretofore quixotic bans (at fertilization, at fetal heartbeat, or any other gestational age that is not the current legal standard of viability)? The answer, so far, has been all of the above, with varying factions managing to pass more than 400 restrictions on abortion at the state level in the past seven years alone.
Team go-slow fears that pushing for more would lead to a judicial backlash, and maybe a political one, that would actually strengthen abortion rights.
“When you have a willing court, then you pursue what they’re willing to do,” conservative attorney James Bopp told me in 2013. “And they are clearly not willing to countenance overturning Roe v. Wade.”
But Bopp, the man behind Citizens United, was referring to a world where both sides contorted to please Kennedy, a man who sought compromise — in practice, incoherence — on the issue. When Kennedy saved Roe, sort of, with Planned Parenthood vs. Casey in 1992, he allowed states to restrict abortion as long as they didn’t endanger women. A few years later, he voted twice to uphold bans on an abortion procedure that had no exception for women’s health. Then, just two years ago, Kennedy voted to throw out a Texas law that shut down abortion clinics in the name of women’s safety — a setback even for the incremental crowd — only to hand his seat to a man who promised to overturn Roe.
We are about to live in Chief Justice John G. Roberts Jr.’s world. It’s true that Roberts has been coy on abortion, voting at every chance to uphold restrictions on it while not saying any more than he has to. He has repeatedly sat out Justice Clarence Thomas’s tart dissents in abortion cases (sample line: “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade . . . has no basis in the Constitution”). But too much has been made of Roberts’s votes to uphold the Affordable Care Act. Close observers of abortion law have no doubt that the movement to ban abortion can count on the chief.
As for which of the parade of abortion restrictions marching their way through the courts will be the one, Roberts may not get to choose: It takes only four votes for the court to take up a case, and Trump’s second pick may be eager to cut to the chase.
At his nomination hearings, Roberts declared Roe “settled as a precedent of the court” and said: “I do think that it is a jolt to the legal system when you overrule a precedent. . . . It is not enough that you may think the prior decision was wrongly decided.” Does that mean he would stop short of undoing the court’s abortion cases, which were upheld as recently as two years ago?
Not necessarily. On favored causes such as money in politics and this term’s union-fees case, Roberts has helped leave precedents and principles in tatters. You don’t even have to look past abortion itself: In 2000’s Stenberg v. Carhart, Justice Sandra Day O’Connor cast the deciding vote to strike down a state ban on “partial birth abortion,” citing the court’s precedent in Casey. By the time the federal version of the same law reached the court, in 2007’s Gonzales v. Carhart, O’Connor had been replaced by Samuel A. Alito Jr., and with his help, the court’s conservatives, including Roberts, eagerly teamed up to overrule the precedent. As Justice Ruth Bader Ginsburg alluded to in her furious dissent, all that had changed was that the court was “differently composed.” Barring some kind of miracle for the Democrats, who have vowed to block Trump’s next pick but don’t have many tools to do so, we’re about to see a similar shift.
Roberts may well be sensitive to concerns that overturning decades of abortion law will undermine the court’s legitimacy. In an interview, Reva Siegel, a constitutional law professor at Yale, sketched out a possible two-step scenario akin to Roberts’s rulings on the Voting Rights Act. He stopped short of gutting a key provision in a 2009 case, but laid the groundwork. Four years later, Roberts had a precedent to cite in his majority opinion in Shelby County v. Holder, which struck at the heart of a long-standing federal law.
Politically, Siegel added, overturning Roe immediately could mobilize progressives for the 2020 election, which Roberts surely understands. Part of the problem is that Roe v. Wade is overwhelmingly popular — all the more reason to avoid saying the words “Roe is overruled.”
But a halfway step — say, announcing a new legal standard that would rubber-stamp any legal restrictions except a ban — could motivate conservatives to ensure that Trump gets a second term to finish the job. And “incremental” would still be plenty: Simply overturning the two-year-old Whole Woman’s Health v. Hellerstedt, for example, would eliminate access in swaths of the country and close the last abortion clinic in Mississippi.
Last week, Trump talked about states deciding their own abortion laws in an effort to downplay the potential effect of his lifetime appointment. But even the pre-Roe “letting the states decide” — a patchwork where women might have to travel hundreds of miles to terminate a pregnancy — is not the end of the story.
The next time you hear that this is really about states’ rights, consider this: Republicans have repeatedly introduced nationwide abortion restrictions, including the one Roberts voted to uphold in Gonzales v. Carhart. This year, the GOP fell short of passing a federal ban on abortion after 20 weeks by just a few Senate votes — but that, like the Supreme Court, could change.
So the question, ultimately, is not whether the court could overturn Whole Woman’s Health, Casey and Roe, but whether it would stop with letting red states ban abortion and force blue states to, too. “Will they declare there’s a right to life of the fetus?” Priscilla Smith, who argued the 2007 abortion case, wondered. “That states can’t allow abortion?
“That might be,” she said, “what they mean about going slowly.”
CORRECTION: An earlier version of this article incorrectly stated Chief Justice John G. Roberts Jr. had joined Justice Anthony M. Kennedy in a 2000 dissent. In fact, Roberts was not on the Supreme Court for that 2000 ruling; he took his seat in 2005.