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There Is No Secret GOP Plan to Preserve Roe v. Wade

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Senate Majority Leader Mitch McConnell, a Republican from Kentucky, from left, Brett Kavanaugh, U.S. Supreme Court associate justice nominee for U.S. President Donald Trump, and U.S. Vice President Mike Pence, stand during a meeting at the U.S. Capitol in Washington, D.C., U.S., on Tuesday, July 10, 2018. Senate Republicans are pledging a swift confirmation process that would put Kavanaugh on the bench before the new term opens Oct. 1, and there is little Democrats can do to stop them. Photographer: Chip Somodevilla/Pool via Bloomberg

We’ve discussed this before, but as more and more states tee up direct challenges to Roe, it’s worth noting that while this claim is superficially plausible it’s not actually supported by history:

Given that Roe has (albeit in substantially reduced form) survived continuous Republican control of the Supreme Court, it is superficially plausible that Republican elites don’t want Roe overruled and have deliberately kept it alive as an election strategy. But that’s not actually what’s happening; the survival of Roe was in fact a highly contingent fluke:

  • If Robert Bork has been confirmed to the Supreme Court — which certainly most Republican elites wanted! — Roe would have been dead before 1990. Another way of putting this is that had Reagan nominated Bork and Scalia in reverse order Roe would have been dead before 1990.
  • The survival of Roe also required the appointment of David Souter. But this wasn’t a conscious plan to preserve Roe, but the combination of various intersecting idiosyncrasies within the Bush administration, most notably some lawyers in the DOJ being upset about Ken Starr not being sufficiently wingnutty on a particular obscure federalism issue and an unusual number of New Hampshirans being in Bush’s inner circle.
  • I also don’t understand the idea that Roe being overturned will mean that evangelicals will no longer have the issue to rally around. There will be active conflicts over abortion laws in most states and Congress! And preserving their legislative victories will require maintaining control of the Supreme Court! It is true that overruling Roe will be unpopular, but one can say the same thing about pretty much the entire Republican agenda; it won’t suddenly make them unable to win national elections.

I don’t think that the gutting of Roe will start with a farily direct challenge like the Georgia law, but it’s where it will end, and I would set the over/under at 5 years. Note too that the Georgia law can be upheld by yet another redefinition of the Casey “undue burden” standard without formally overruling Roe — the Alito opinion observing that it’s theoretically possible that a woman could get an abortion within the 6-week window and hence a woman’s right to choose has not been eliminated writes itself.

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