But not in the way you may think.
There are essentially three possible outcomes to this case:
- The court, citing stare decisis, or respect for precedent, strikes down the Mississippi law as a clear conflict with Roe v. Wade and Planned Parenthood v. Casey, the two cases that established that states cannot place an undue burden on a woman’s ability to obtain an abortion before fetal viability, which generally occurs around 24 weeks.
- The court strikes down Roe, allowing states to outlaw abortion.
- The court says it is not overturning Roe, but opens the door to abortion restrictions so broad that states can effectively ban the procedure.
If you listen to the expert commentary around the Supreme Court — and, granted, no one really knows for sure — the third option seems like the most likely. If that’s where the court goes, it will prove that all the protestations about how little the justices think about politics are false.
We’ve heard that with particular vigor recently, especially from Justices Stephen G. Breyer and Amy Coney Barrett. With Senate Minority Leader Mitch McConnell (R-Ky.) sitting behind her at a September event celebrating a university center dedicated to McConnell, Barrett said, “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
For some of the justices, that’s perfectly true — which is why it’s important to distinguish between ideology and partisanship.
For instance, Clarence Thomas is the most conservative justice on the court, to the point where the immediate interests of the Republican Party do not much concern him. In fact, once his confirmation vote was over, he was free to stop worrying about politics.
So during those confirmation hearings in 1991, when it came to questions about Roe, Thomas had the gall to claim that he had no opinion about it and even that he had never once had a conversation about it. Not in law school, not among friends in the conservative legal community, not among colleagues in the Reagan administration — never. Neither his opponents nor his supporters believed it for a second.
Indeed, once he was safely on the court, as The Post’s Robert Barnes describes, he immediately began an effort to overturn Roe that has continued for three decades and could soon come to fruition.
For other justices, however, beliefs and political concerns can compete in uncomfortable ways. As my colleague Ruth Marcus notes, on the conservative side there are “three extremely conservative, extremely impatient justices — Thomas, [Samuel A.] Alito [Jr.] and [Neil M.] Gorsuch — who would go to extraordinary lengths to undo some of the most entrenched constitutional doctrine.”
The other three conservatives — Chief Justice John G. Roberts Jr., Brett M. Kavanaugh and Barrett — are considered incrementalists. At least relative to Thomas, Alito and Gorsuch, they prefer to move more cautiously before overthrowing years or decades of jurisprudence to achieve conservative goals.
They’re the ones who will decide Roe’s fate, and they know that abortion is the most politically volatile subject they’ll confront. And should they choose to construct a de facto overruling of Roe that nominally leaves it in place — thereby avoiding the “Roe Overturned!” headlines that would be so damaging to their party — you’ll know they chose the political path.
That’s because the alternatives require logical and legal somersaults that would simply make no sense. They could eliminate the viability standard while claiming women still have a constitutional right to abortion, but that would mean a state such as Mississippi could ban the procedure after, say, one hour after conception. They could revise the “undue burden” standard out of existence by allowing states so much latitude to regulate abortion providers out of business that the procedure would become simply impossible to obtain legally.
They could do that. But they couldn’t claim that such an approach is somehow rooted in the Constitution. So the only ideologically consistent path to take for a justice who opposes abortion rights — as everyone believes all six conservative justices do — is to simply overturn Roe, the case that established that constitutional right in the first place.
If they simply upheld Roe and struck down the Mississippi law, at least they could say stare decisis was the reason. But if they find a backdoor way to destroy Roe while saying they didn’t actually overturn it, you’ll know that it was one thing, and one thing only, that held them back: politics.