Right Side of the Rainbow

In a comment to this post, “mAcChaos” asks, “Do you think RvW [Roe v. Wave] would get overturned if it was visited today? What would it take?”

I don’t have any special insight into how the justices think, but we can all do the math.

• Today the Court holds only two sure votes for the overruling of Roe; those votes belong to Justices Antonin Scalia and Clarence Thomas. (See Planned Parenthood v. Casey, 505 U.S. 833 (1992), Scalia, dissenting).

• We can surmise that the Court’s newest member, Justice Samuel Alito, is a probable vote to overrule Roe based on his statements and what we know of his judicial philosophy generally. If so, that puts the number to overrule at three.

• Chief Justice John Roberts is a big question mark. On the one hand, he’s a judicial conservative; on the other hand, he’s a … judicial conservative. In other words, we can be confident that as an original matter, Chief Justice Roberts would hold that the Federal Constitution does not guarantee a right to an abortion. But Roe is not an original matter. And many judicial conservatives value stability in the law, even when it means the preservation of error.

• The other five justices — John Paul Stevens, Anthony Kennedy, David Souter, Ruth Ginsburg and Stephen Breyer — are committed to what former Justice Sandra Day O’Connor described as the “essential holding” of Roe.

• So there are at least five, and maybe as many as seven, votes to sustain Roe.

• It’s possible, and even probable, that with the help of Justice Kennedy, the Roberts Court will uphold various restrictions on abortion, including a ban on partial-birth abortions. The Court operates on the view, articulated by Justice O’Connor, that the Government must not place an “undue burden” on the abortion right. Presumably this means some burden is due. But that’s as far as it’s going to go.

Finally, it can’t be said enough that even were the Court to overrule Roe today, that would only restore the status quo ante. In other words, the states would again be free to restrict or even ban the practice. And a few would. But do we really think that states like California or New York or Massachusetts are going to outlaw abortion? The odds are better than each of us will win the lottery.