WASHINGTON — Abortion rights are at risk at the Supreme Court, but the short-term threat may not come from extreme measures like the one passed by Alabama lawmakers on Tuesday.
The court led by Chief Justice John G. Roberts Jr. is more likely to chip away at the constitutional right to abortion established in 1973 in Roe v. Wade than to overturn it outright. It will have plenty of opportunities to do so.
As soon as Monday, the court could announce whether it will hear challenges to three provisions of Indiana abortion laws on issues like the disposal of fetal remains and an 18-hour waiting period after state-mandated ultrasound examinations. The court will in the coming months almost certainly agree to hear a challenge to a Louisiana law that could reduce the number of abortion clinics in the state to one.
The Alabama bill is a different kind of measure, one that squarely conflicts with Roe. It would ban almost all abortions in the state, without exceptions for rape and incest, and subject abortion providers to harsh criminal penalties. Because the Roberts court tends toward incrementalism, it is not likely to want to take on a direct confrontation with that precedent.
Nor in all likelihood will it have to.
Lower courts will almost certainly strike down the Alabama statute and other direct bans on abortion, like the ones that bar the procedure after doctors can detect what the measures call a “fetal heartbeat,” which happens at around six weeks of pregnancy. The lower courts will have little choice, as controlling Supreme Court precedents prohibit outright bans on abortion until the fetus is viable outside the womb, usually at about 24 weeks.
Since the Supreme Court controls its own docket, it can simply deny review after lower courts strike down laws squarely at odds with Roe.
To be sure, recent changes on the court have given opponents of abortion rights new hope for a wholesale reconsideration of Roe. Justice Anthony M. Kennedy, who retired last year, had been a cautious supporter of abortion rights and was an author of the key opinion in 1992 in Planned Parenthood v. Casey, which both reaffirmed and modified the core of Roe, announcing that states may not impose “undue burdens” on abortion rights.
Justice Kennedy has been replaced by Justice Brett M. Kavanaugh, whose limited record as an appeals court judge suggests that he will be more skeptical about the right to abortion.
“There are obviously a good number of state legislators who think the time is right to mount a frontal or near-frontal attack on Roe,” said Cary Franklin, a law professor at the University of Texas at Austin. “Those legislators are not being foolish to think that five justices might now be persuaded to overrule or essentially gut the constitutional right to abortion.”
But Justice Kavanaugh has also exhibited some restraint in his first months on the court, and he may not be eager for an immediate confrontation with the basic issue when intermediate steps are available.
There are three members of the court — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — who seem less patient. In February, Justice Thomas wrote that Roe was among the court’s “most notoriously incorrect decisions.” He gave one other example of such a ruling: Dred Scott v. Sandford, the 1857 decision that said black slaves were property and not citizens.
It takes only four votes to add a case to the court’s docket, meaning that either Chief Justice Roberts or Justice Kavanaugh could force the court to confront the ultimate fate of a constitutional right to abortion when a case concerning the Alabama law or a similar one reaches the court.
“What we don’t know,” Professor Franklin said, “is the extent to which either Chief Justice Roberts or Justice Kavanaugh feels sufficiently bound by 50 years of precedent, or by a desire not to be viewed by the public as discarding that precedent for political-ideological reasons, to pull back from the brink.”
Melissa Murray, a law professor at New York University, said much would turn on Chief Justice Roberts, who might have conflicting impulses.
“Recent departures and appointments, coupled with an increasing skepticism of established precedents, suggests the Supreme Court is more amenable than ever to overruling Roe,” she said. “The recent spate of restrictive abortion regulations reflects this new reality.”
“These laws are an obvious provocation — a clear attempt to take the question of Roe’s continued viability straight to the court,” Professor Murray said. “The real question is whether Chief Justice Roberts’s interest in preserving the court’s institutional legitimacy will outweigh the conservative interest in legislating abortion out of existence.”
Chief Justice Roberts is a product of the conservative legal movement, and his general inclination is to lean right. But he is also an institutionalist and a guardian of his court’s authority, meaning he generally makes modest and deliberate moves.
In February, for instance, he joined the court’s four liberal members to block enforcement of the Louisiana law, which requires doctors performing abortions to have admitting privileges at nearby hospitals. The court’s four other conservatives would have let the law go into effect.
Chief Justice Roberts’s vote was something of a surprise, as he had dissented in 2016 from the court’s decision to strike down a Texas admitting-privileges law essentially identical to the one from Louisiana.
Still, the court’s liberal justices seem nervous. On Monday, in a case overruling a precedent in a different area of the law, Justice Stephen G. Breyer’s dissent chastised the majority for acting rashly. Repeatedly citing the Casey decision, Justice Breyer said he feared for the future.
“Today’s decision can only cause one to wonder which cases the court will overrule next,” he wrote.
Chief Justice Roberts was in the majority in Monday’s decision, and he has voted to overrule important precedents on campaign finance and public unions.
At other times, he has called for restraint. During his 2005 confirmation hearings, he said the Supreme Court should be wary of overturning decisions, in part because doing so threatens the court’s legitimacy.
“It is a jolt to the legal system when you overrule a precedent,” he said. “Precedent plays an important role in promoting stability and evenhandedness.”
Chief Justice Roberts elaborated on the power of precedent in a concurring opinion in 2010 in the Citizens United decision, which overruled two rulings. Departures from precedent, he wrote, require very good reasons.
But he added, quoting from earlier decisions, that the Supreme Court remained free to correct its worst errors.
“Stare decisis is neither an ‘inexorable command’ nor ‘a mechanical formula of adherence to the latest decision,’ especially in constitutional cases,” he wrote, referring to the Latin legal shorthand for respect for precedent. “If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the government could wiretap ordinary criminal suspects without first obtaining warrants.”
Richard W. Garnett, a law professor at Notre Dame, said the constitutional confrontation over the right to abortion sought by the sponsors of the Alabama law was unlikely to come to pass.
“It appears that the proposal’s supporters intend to create an opportunity for the current court to revisit its decisions creating that right,” he said. “However, it is not clear that the current justices who have expressed doubts about the correctness of decisions like Roe and Casey will want to take up a case that squarely presents the question whether these decisions should be overruled. Instead, they might well prefer to first consider less sweeping abortion regulations and to uphold them even under the current doctrine.”