Not if they disenfranchise them.
First, for a party that might not want Roe overturned, they’re certainly trying hard to get abortion restricted in just about every state they hold power. If they were worried about a population explosion of Democratic voters, why would they keep adding obstacles to abortion? This assertion seems dubious to me.
Second, can you please provide a cite that safe and legal abortion actually has an effect on population growth? It’s certainly possible, but it’s also possible that abortion just affects the timing for when a woman has a child – she would have had two children, but she didn’t want to start in high school.
Third, can you provide a cite that some non-nutter portion of the US electorate is actually “pro-abortion”, rather than “pro-abortion-rights”, or, in their preferred terminology, “pro-choice”?
Thanks!
My emphasis. This is not correct. Overturning Roe v. Wade would not make abortion illegal. It would simply remove the constitutional protections that abortion currently enjoys.
States would not have to determine “whether or not to legalize abortion,” because abortion is already legal everywhere. What they would have to determine, if Roe v. Wade were overturned, is whether or not to restrict or ban abortion.
As for the OP, even though Roberts’ concurrence in this decision struck down Louisiana’s efforts to restrict abortion through regulation of providers, anyone who thinks that John Roberts is a friend of the pro-choice movement is kidding themselves. Give him a chance, with a law that isn’t quite so perfectly identical to the Texas law struck down in 2016, and he’ll be happy to allow states all sorts of ways to restrict and, in some cases, effectively remove all opportunities to terminate a pregnancy.
Not only that, but even his concurrence in this case makes it easier for abortion regulations to get by the court in future cases. As legal scholar Leah Litman notes:
[Second post because of the ridiculous 3,500-character post limit]
I tend to agree that it’s relatively unlikely, but not completely impossible, that Roe v. Wade will be simply overturned. More likely, we’ll get an ever-widening number of limits that states can place on abortions, through various types of regulation, that chip away at the right without ever explicitly eliminating it.
This was even the strategy explicitly advocated by now-Justice Samuel Alito in 1985, back when he was a young Justice Department lawyer:
I am very comfortable with the idea of stripping employee protections because “fuck the police unions.”
But that’s another thread.
Agreed…since I apparently accidentally brought this topic up can we agree to stop the hijack here?
The thing is, Roberts dissented in the Texas case. Now he’s going to use stare decisis on something he dissented on 4 years ago? This shows me he will pay lip service to the pro-life movement when it won’t disrupt the status quo, but not when it will.
Yes, that’s what stare decisis is – having respect for previous decisions, not arbitrarily overturning decisions that you disagreed with because you now have a majority. Otherwise, everything will be re-litigated every time there’s a new mix on SCOTUS.
So, you’re making my case that Roe will not be overturned. If some case that is not as consequential as Roe, from a measly 4 years ago, can be upheld by stare decisis, do you think something huge from 47 years ago won’t be?
Firstly, as RitterSport suggests, if you actually believe in the principle of stare decisis, you are generally supposed to support it whether or not you agree with the decision in question.
More generally, I think that it’s far more likely that these two cases (Whole Women’s Health, 2016, and June Medical Services, 2020), taken together, demonstrate Roberts’ institutional approach to the court itself. Especially the second one.
Roberts does not want the court to be seen as a purely partisan political institution, even if it sometimes is such an institution. Many of his decisions, on issues well outside the ambit of abortion or cultural politics, have demonstrated his commitment to reinforcing the idea of the court as a sober and thoughtful and legal (rather than political) institution. This doesn’t mean, of course, that Roberts is apolitical, but it does mean that he doesn’t want the court to be too obvious about its politics. He recognizes that every 5-4 decision along ideological lines robs the court of a little bit of legitimacy in the eyes of many Americans, and he wants to mitigate that where he can.
I think his decision in this case is, in some ways, reflective of these concerns. It’s also, in some ways, a “fuck you” to both Louisiana and the Fifth Circuit Court of Appeals. The court ruled on Whole Women’s Health in 2016, invalidating a Texas law that put regulatory barriers in the way of abortion providers. The state of Louisiana then turned around and wrote a law almost identical to the Texas law, and the Fifth Circuit basically ignored the Supreme Court’s 2016 decision and allowed the law to stand
I think that is precisely the sort of thing that pisses Roberts off, because it’s a nakedly partisan effort to take advantage of the new configuration of the court. Louisiana didn’t even try to make its law different from the one the court struck down in Whole Women’s Health, and the Fifth Circuit’s rationale was incredibly thin, and it also denied an en-banc hearing in the case. Roberts is basically saying to both of them, “Come on, you have to at least make an effort here.”
As for Roe, as I said in my earlier post, I think you’re probably right that it won’t be explicitly overturned, although I wouldn’t bet the house on that. It will, instead, be rendered increasingly toothless over time through allowing draconian regulation that has very little to do with actual health outcomes, and everything to do with moral opposition to abortion.
I disagree. If Roe is overturned, then we will just see a push by conservatives to ban abortion in all 50 states. If Roe is overturned we will still have easy access to abortion in the northeast, west coast and some parts of the northern midwest and southwest.
What are you disagreeing with? Nothing in your post contradicts anything that I said.
If Roe is overturned, or if it is limited by courts allowing severe restrictions on abortion providers, then the extent of restrictions will depend on the politics of each individual state.
I was addressing OP.
The anti abortion activists will just find another battle.
Overturning Roe is just step one. Step 2 would be banning abortion in all 50 states. Step 3 would be banning abortion globally. They’ll still support right wing politicians to achieve these goals. And since step 3 is totally unrealistic, it’ll be an endless battle.
Yeah, progressives thought they won, had a party and went home after Roe v Wade.
Conservatives are not going to be as complacent. They may rest once there is a personhood amendment and death penalty for any miscarriage that is not signed off on by a panel of doctors, but even then I’m sure they’d still be looking to find more ways of enforcing their morality on others.
Agreed. I think Roberts understands that there will be plenty more anti-abortion cases to hear. No sense in him risking his cred as a sober, principled jurist when he can just wait for the right case to come down the pipeline.
Yes, because it would come with a different line of attack. This case was the same line of attack as four years earlier and makes a mockery of the court. If someone came along with a personhood law or some other approach, Roberts wouldn’t be as reluctant agree with it. Or, find some other way of throwing obstacles in the way. Plus, long-standing precedent does get overturned, and I’d argue that it’s more likely to be overturned than re-litigating something from four years prior.
Maybe I’m reading too much into Roberts’ concurrence but he said:
Both Louisiana and the providers agree that the undue burden standard announced in Casey provides the appropriate framework to analyze Louisiana’s law. Brief for Petitioners in No. 18–1323, pp. 45–47; Brief for Respondent in No. 18–1323, pp. 60–62. Neither party has asked us to reassess the constitutional validity of that standard.
I think Roberts would be open to a frontal assault on Roe v. Wade as he should as it is possibly one of the worst decisions of the Court that history will judge the same as Dred Scott, Lochner, or Plessy. What he won’t do is allow what other posters have referred to; a cheap attempt to get around a 4 year old decision by lying about what you are doing.
To follow up: Why mention that nobody asked to overrule Casey/Roe? It seems a bit unusual to qualify an opinion that way.
I mean, you wouldn’t see an opinion about racial diversity in schools using a line like, “Applying our precedent in Brown v. Board of Education, which no party has asked us to overrule…” You wouldn’t mention that the parties didn’t ask you to overrule something unless you were thinking in the back of your mind that something might be needing overruling.
That’s not what he did. Christ, read your own damn quote, which you inserted in the previous post. He said that neither party had asked the court to “reassess the constitutional validity” of the “undue burden” standard from Casey. You can’t just lump Casey/Roe in together like you did, because Casey added the “undue burden” standard, which was not there in Roe.
And the reason he mentions it is that Supreme Court rulings are supposed to make clear the principles they use to arrive at their decisions. This whole case was about a law that made it more more difficult for abortion clinics to operate in the state of Louisiana, and both parties to the case agreed that the appropriate standard to use in judging the validity of that law was the “undue burden” standard from Casey. June Medical Services believed that the law placed an “undue burden” on the ability of women to obtain an abortion, just like the Texas law in the Whole Women’s Health case; and the state of Louisiana argued that it did not.
The whole of the next seven pages of Roberts’ concurrence is then devoted to examining the extent to which the Louisiana law placed unconstitutional obstacles in the way of abortion access, especially in comparison to the Texas law that was struck down in Whole Women’s Health.
His sentence about Casey was not “qualifying” his opinion at all; it was the absolute central issue in his analysis.
You’ve been to law school. Were you never required to take a class on Constitutional Law? Were you never required to read and analyze appellate court decisions?
I’ll thank you if you don’t personally insult me again in your response.
But to be clear, Casey did not “add” anything. It reduced the standard of “strict scrutiny” applied in Roe to Justice O’Connor’s stupid and malleable “undue burden” standard.
Roberts is saying that as nobody asked for any different analysis, then the undue burden standard applies, and proceeds to analyze the law under that standard and by the Whole Women’s Health standard because of stare decisis. Yes, that is a qualification of the opinion. That is the very definition of a qualification.