This not only an important point, it makes clear that there’s no reason why the Court’s anti-Roe majority shouldn’t just rip the bandaid off in June:
I'm not sure the country is prepared for what is about to happen at the end of June.
When SCOTUS overrules Roe – or eviscerates Roe – (one of those two things is going to happen), there is going to be a slew of restrictive abortion laws going into effect/waiting in the wings. https://t.co/fQzrk7Htjl— Leah Litman (@LeahLitman) April 12, 2022
I assumed for a long time that the post-Kennedy Court would take a bullshit-minimalist approach to overruling Roe. But what I failed to understand, although I really should have, is that only works if Republican-controlled legislatures were willing to play along. Gradualism on the part of the Court can’t work for more than a few months if Republican legislatures are maximalists. The Court can say it’s not formally overruling Roe, and perhaps get Fact Check Dot Org to call a Democratic politician the Liar of the Millennium for saying that Roe has been overruled, but 1)people will notice when state after state bans abortion and the Court does nothing about it and 2)the Court would have to rule on the constitutionality of one of the total bans within a year or two anyway. What would be the point? Even if the majority were inclined to be tactical, which I doubt, I don’t see any benefit to the Court of the Republican Party to overruling Roe sub silentio and then doing it explicitly in another year or two. The con just can’t work when Republicans aren’t even waiting until June to get the bans in place.
What I think Roberts figured out between Whole Woman’s Health and June Medical is that a minimalist attack on Roe had to leave something of substance — presumably drawing the line at an explicit ban on first trimester abortions or something similar. But his vote no longer matters so it’s game over. I think it’s overwhelmingly likely that the Court just overrules Roe now but it’s also beside the point.