Ever since President Donald Trump’s election, anti-abortion activists nationwide have been salivating at the prospect of a Supreme Court yanked to the right.
Eager to find out whether Trump’s two appointees have made that a reality, they are wasting no time in whipping up various abortion bans and restrictions in the hopes that one will ricochet from the lower courts up to the Supreme Court, giving the conservative majority a chance to defang or overturn Roe v. Wade.
Some of those laws are currently tangled up in the courts, or headed in that direction. We took a look at those laws’ path to the Supreme Court here.
On Monday, the usually mild-mannered Supreme Court Justice Stephen Breyer, a member of the Court’s liberal contingent, sparked a new wave of concern about the laws when he issued a warning about what should happen if one of them — either one of the recently passed laws above, or older ones floating around the lower courts — made it to his courtroom.
Breyer sounded off in a dissent to the Court’s ruling on Franchise Tax Board of California v. Hyatt, a somewhat anodyne case about prosecution across state lines. The ruling split the liberals and conservatives as the latter contingent completely abandoned years of precedent established by a related case.
It is “dangerous,” Breyer wrote, “to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall [the precedent] even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.”
He specifically cited Casey v. Planned Parenthood, the 1992 ruling which upheld Roe, in his opinion, raising the antenna of every observer vested in the future of reproductive rights.
What Do The Experts Say?
Elizabeth Watson, staff attorney with the ACLU Reproductive Freedom Project, still sees the power of precedent as a compelling reason for pro-choice advocates to find hope.
“I think these bans — which multiple states have passed both in this recent juncture in this legislative session post-Trump and also in the scheme of constitutional history — have passed and not gone into effect,” she told TPM. “The Supreme Court can choose cases, and could very well say ‘we’ve already ruled on this, there’s nothing confusing going on there.’”
Carole Sanger, a law professor at Columbia University specializing in reproductive cases, agrees that there is no compelling legal argument that these laws take with Roe.
“They’re not making their way up the ladder, lower courts are turning them down, there’s no grease pole upwards,” she said. “It’s because the argument is so unsubtle — it’s that we don’t care about the argument,” she said of the anti-abortion contingent.
She explained that Roe is centered on the concept of viability.
“[The Court] said that in the first trimester, the state has almost no interest in regulating because abortion is safer physically than childbirth then,” she said. “In the second trimester, the procedure for doing an abortion gets more complicated. There comes a time, says the Court, where the state’s interest in what they call potential life becomes so great that the state can actually ban abortion unless mother’s life at stake.
That point, the court decided, is called viability — the point at which the fetus can live outside the womb on its own.”
Currently, a fetus is considered viable at 22-24 weeks.
The six-week bans, particularly, do not try to even address the question of viability. Their proponents believe that a fetus has a detectable heartbeat six weeks from conception and thus deserves protection. That’s an argument, but not one in any conflict with Roe. The Court isn’t interesting in deciding when a human becomes a human philosophically — it’s interested in when a human becomes capable of sustaining itself.
The Alabama law, on the other hand, is so extreme and in such direct contradiction to Roe that taking it up would force the Supreme Court to reconsider and potentially overturn the precedent completely.
“I’m not sure they can get it to the Supreme Court,” she said of the law. “I think in a sense the legislature may have overplayed its hand by picking something so ridiculous: ‘We don’t care what the Supreme Court said, we now say in Alabama that abortion is a crime.’ That’s usurping a lot of authority by the state legislature saying ‘we don’t believe in the law of the land. We’re not playing the federalism game anymore.’”
Nonetheless, she emphasized that the integrity of the courts depends on the judges within them.
She said it depends on these “I don’t want to say zealot judges being, we hope, serious people who believe in applying the law as it is not how they wish it were.”
When asked if she thinks that the current Supreme Court features conservative “zealots” who would put personal preference over a respect for precedent, she paused.
“The case Monday was pretty important and a little bit terrifying,” she said of the Hyatt decision that prompted Breyer to write his dissent. “Aside from the votes Monday, I would have thought no. It’s a conservative position to stay with precedent, the orderly system here that helps us have people respect the court. They’re not supposed to chuck out decisions they don’t like.”
So Is Roe Safe Or Not?
In the end, no one knows exactly where these laws will go. We can make predictions based on past opinions and ideologies, but the humans involved — from a district court judge to Chief Justice John Roberts — are changeable and influenceable.
What is true is this: the Supreme Court is currently friendlier to the aims of anti-abortion activists than it has been at any other time in recent memory. And experts TPM spoke to noted that the conservative faction of that body recently showed a lack of respect for legal precedent with the Hyatt decision.
Now, there are caveats even there. The case that provoked Breyer into issuing his warning was, for lack of a better term, a yawn — not a hot button precedent, like Roe, that has significantly altered society and engendered fierce advocates and dedicated enemies.
Still, the majority showed at least a willingness not to hew to a judicial standards that many of their forbearers did — and state-level activists are giving it every possible opportunity to unravel or weaken or overturn a ruling that many conservatives feel is not just wrong, but wholly immoral.
To put it cautiously, there is cause for concern. And that concern will only become more heightened the more Trump-aligned justices squeeze onto the courts.
Precedent is on Roe‘s side — but the judges in charge of following it may not be.