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Target: Roe

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The Supreme Court has granted cert in the Louisiana abortion case. This will be the beginning of the end of the protection of reproductive rights by the Supreme Court:

The fifth vote in Whole Woman’s Health, however, was provided by Justice Anthony Kennedy, who retired in 2018 and has been replaced by the fiercely anti-abortion Brett Kavanaugh. Given that the three dissenters Whole Woman’s Health remain on the court, and that the almost certainly anti-Roe Neil Gorsuch has filled the seat left vacant by Antonin Scalia’s death in 2016, the math seems clear: Whole Woman’s Health — and therefore, effectively, Roe v. Wade — is a goner.

Some supporters of abortion rights may nonetheless be optimistic because, in February, Chief Justice John Roberts — who, on a court with Kavanaugh, Gorsuch, Samuel Alito and Clarence Thomas is now seen as a “moderate” — joined with the court’s four Democratic-appointed justices to prevent the Louisiana law from immediately going into effect. But this was only necessary because the 5th Circuit Court of Appeals effectively nullified the binding Whole Woman’s Health precedent by upholding the Louisiana law and, while the Supreme Court can overrule its own precedents, lower courts are required to apply them.

But the fact that Roberts doesn’t like lower courts ignoring his rulings doesn’t mean that he would be reluctant to overrule the precedent itself — and it is incredibly unlikely that he’s changed his mind since voting to uphold the Texas law only three years ago. And given that Kavanaugh and Gorsuch were fine with the 5th Circuit flouting the Supreme Court’s authority to uphold the Louisiana statute, there is no doubt that they, too, will vote to uphold the Louisiana law instead of the precedent.

It is fair to ask, however, whether the Supreme Court will really want to overrule Roe v. Wade in an election year. The decision, after all, is supported by a huge majority of the public, and Donald Trump’s margin for error is already razor-thin. But the beauty of the Louisiana case is that the court could inflict substantial damage to Roe without needing to formally overrule it.

Had the court taken up, say, one of the bans on abortions after six weeks of pregnancy that have been recently passed by state legislatures, it would be forced to face Roe head on because, even after its conservative modification by the aforementioned 1992 Casey decision, the law still plainly holds that outright bans on first trimester abortions are unconstitutional. This way, the court could uphold the Louisiana law by pretending to enforce Casey while defining the “undue burden” standard in a way that allows virtually any state regulation short of a total ban to be seen as constitutional without needing to announce the overruling of a precedent.

This slow hollowing out of precedents is a Roberts specialty, designed for large substantive gains while minimizing political costs, and is perfectly designed for an attack on Roe v. Wade. While the court may not be fully honest about what it will accomplish, upholding the Louisiana law would effectively constitute the overruling of Roe v. Wade — and this outcome is overwhelmingly likely.

If my Twitter feed is any indication, I think a lot of people seem to be confused about what it means to say that the Supreme Court is “political.” What it means is that generally in politically salient cases justices will vote consistently with their substantive preferences if the law permits it (or they can convince themselves that the law permits it.) It doesn’t mean that justices are trying to maximize the number of House seats their preferred party gets in the next elections. Obviously, it wouldn’t be great for Trump (or Susan Collins) to have this ruling come down next June all things being equal. But Republican legal elites have long yearned to destroy Roe and now that they’re in a position to do so they’re not going to care. And, in addition, the media’s Both Sides Teach the Controversy ethos makes them perfect marks for Roberts’s bullshit-minimalism.

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