Roe v. Wade, of course, sets precedent too — but its unraveling remains a very real possibility. Supporters of abortion rights should not celebrate just yet: June Medical is not a sign that Roberts will leave Roe alone. There is no reason to think that he is now an ally of the left-leaning justices, or that he intends to stay out of the culture wars. It just means he’ll seek ways to act that don’t jeopardize the court’s reputation.
June Medical asked the justices to do too much too soon, reversing a recent ruling and making a mockery of the court’s claim to be above the partisan fray. But abortion opponents have an obvious path ahead: laws that rely on scientific uncertainty. This strategy could significantly undercut abortion rights and lay the groundwork for the ultimate reversal of Roe. Just as important, it offers the court the opportunity to do so while plausibly claiming to care about stare decisis.
Many of the cases working their way through the lower courts draw on the last big win for the antiabortion movement, Gonzales v. Carhart. That 2007 case upheld a federal ban on a specific procedure often known as partial-birth abortion. Abortion rights supporters argued that the law violated the Constitution because it did not make an exception for scenarios when the procedure best protected women’s health. The American College of Obstetricians and Gynecologists warned that the law exposed patients to serious health risks. But other doctors disputed this, insisting that the procedure was unnecessary and even dangerous. Gonzales held that when a matter is scientifically uncertain, lawmakers have more room to maneuver.
Gonzales offers a blueprint for abortion foes who want to build on precedent rather than ignore it. For instance, more than a third of states have passed fetal-pain bills, which ban abortion at 20 weeks. Upholding a fetal-pain law — several of which have been challenged — would represent the first time the justices allowed a ban on abortion before viability, the point at which survival outside the womb is possible. Such laws rely on a handful of studies suggesting that fetal pain is possible at that point in pregnancy. Though most medical experts reject this conclusion, the idea of scientific uncertainty might give Roberts enough cover to join his conservative colleagues.
The same is true of laws that prohibit dilation and evacuation, the most common abortion procedure after the first trimester. These statutes either force patients to use an alternative, such as taking a drug to induce labor, or to undergo an additional procedure, like an abdominal or cervical injection, which carries additional risks. Ten states have adopted such laws. As with Gonzales, these statutes play on public discomfort with later abortions and with the details of what a surgical abortion involves. Here, too, proponents of the bans invoke scientific uncertainty about the need for a particular technique, claiming that patients would be fine if forced to have an additional procedure or to rely on induction. Either strategy — tailoring bans by fetal age or by type of procedure — would allow the court to invoke precedent while dramatically rolling back abortion rights.
Or consider bills that lawmakers in Tennessee and Mississippi passed in June, banning people from terminating a pregnancy based on the fetus’s race, sex or disability. The Supreme Court recently decided to wait before considering such laws, allowing the lower courts a chance to weigh in first. At the very least, validating such statutes would not force Roberts to jettison precedent immediately.
The tools for eroding abortion rights already exist. Roberts understands this. He pointed to the rule for every abortion case: Regulations cannot place an “undue burden” on a person seeking the procedure. Ever since the court laid down that test in Planned Parenthood v. Casey in 1992, the justices (and clashing social movements) have fought about how much it actually protects abortion. One thing is sure: The undue-burden test focuses on the facts of how abortion restrictions actually work. As a result, Justice Brett M. Kavanaugh tried to argue that the situation on the ground in Louisiana differed substantially from the one in Texas. In particular, he suggested that abortion providers had not shown that the state’s requirement would force them to close.
Roberts couldn’t stomach this argument, but Kavanaugh was smart to take advantage of the ambiguity built into the undue-burden test. Ever since the court decided Casey, legal commentators have battled over whether the test gives legislators free rein — or whether it instead strikes a balance between the government’s interest in protecting fetal life and women’s interest in autonomy, equality and bodily integrity. Four years ago, in striking down the Texas law, the court opted for the second interpretation. It also forced state lawmakers to try harder to justify abortion restrictions — and commanded lower courts to take a close look at those restrictions rather than just taking legislators at their word.
Roberts — who subscribed to a less-protective view of an undue burden — got outvoted in 2016. Not anymore: Going forward, faced with different abortion restrictions, his interpretation could allow many of them to stand. Where the liberal justices once again balanced the abortion law’s costs and benefits in their June Medical opinion, Roberts argued that even laws that served no useful purpose might be constitutional. He even suggested that few laws would count as burdensome in the first place. This version of “undue burden” could allow the court to significantly undercut abortion rights — without overruling anything.
Still, abortion rights are not inevitably doomed. To begin with, the 2020 election could lead to a reconfiguration of the court. Clarence Thomas, the justice most openly enthusiastic about reversing Roe, shows no signs of wishing to retire before then; it’s possible that a Democratic president could get the chance to name his replacement and move the court to the left. And should conservatives preserve their majority on the court, Roberts might still hesitate to dismantle Roe v. Wade. The public pays attention, and responds vociferously, to what the Supreme Court does in abortion cases. The chief justice’s concern about the court’s reputation may be hard to disentangle from his anxieties about a possible backlash; in polls, majorities say they want to keep Roe. Roberts, it seems, would love a way to reverse Roe without damaging his own legacy.
He may not find one — not as long as the antiabortion movement insists on pursuing its current course of action. The largest (or at least the most surprising) stumbling block to dismantling Roe has been conservative politicians. Since Kavanaugh’s confirmation, red states have rushed to pass sweeping abortion bans, outlawing the procedure at six weeks or even earlier. Many such laws contain no exceptions for rape or incest. Larger antiabortion groups have condemned these initiatives as counterproductive. President Trump urged absolutists to forswear these tactics, tweeting last year, “If we are foolish and do not stay united as one, all of our hard fought gains for life can, and will, rapidly disappear.”
It seems that Trump was right to worry: These laws have all failed in the lower courts. State lawmakers once claimed that such wholesale bans would speed up the reversal of Roe, but given Roberts’s obvious interest in showing respect for precedent, they seem likely to fail at the high court, too. That doesn’t mean that state legislators will change course. If the bans appeal to their base, they may not care what the Supreme Court ultimately makes of their handiwork. They may have sound political reasons to press on, regardless of what Roberts says.
June Medical served notice that if anyone votes to undo Roe, it will be the chief justice — not state legislators or lower courts. A few more false moves by conservatives, and the right to choose may be with us for 47 more years.
But supporters of abortion rights should not rest easy. For opponents willing to cater to Roberts’s reverence for precedent, there is a clear path to eliminating abortion rights — if they know where to look.