Basically every description of Casey talks about the “undue burden” standard as a new standard that was imposed in the case. It’s perfectly reasonable to say, in the context of Casey, that the “strict scrutiny” standard was abandoned and the “undue burden” standard was added to the analysis for abortion cases.
I think that if you impose something new, then you have added that something. And this is true even if you have also taken something away (like strict scrutiny).
If you adopt something, then you’ve basically added it. The “undue burden” test was not there in Roe; it was there in Casey. If you want to quibble about whether that means “add” or not, knock yourself out. And even if you continue to argue about the definition of “add,” you still can’t lump Roe and Casey in together as if they say the same thing. Even more importantly, that’s not what Roberts did, despite your implication to the contrary.
As for your qualification analysis, I don’t even know what the hell you’re trying to say. What was it qualifying? You’re making no sense at all. He analyzed it under the controlling analysis required for cases involving abortion.
I’m not sure what we are arguing about here. Roe provided the right of a woman to have an abortion. Any restrictions were to be analyzed under strict scrutiny. Casey reaffirmed that right, but created (“added” if you prefer) the undue burden standard, which is weaker than the strict scrutiny under Roe and changed the trimester framework. Many people cite Roe/Casey when talking about abortion rights.
Whole Women’s Health said that a law that requires hospital admitting privileges for abortion doctors is an undue burden. Roberts dissented in that case. In this case, Louisiana argued that its law survived under Whole Women’s Health.
Roberts said that nobody asked to overrule Casey, so that test controls. And even though he dissented in Whole Women’s Health and he still thinks he was right in his dissent that Whole Women’s Health was a pile of horse doots, the principle of stare decisis compelled him to follow Whole Women’s Health and that under that decision Louisiana’s law must go.
My only observation was that I thought it unique that Roberts said that no party asked the Court to overrule Casey. If they didn’t, why mention it?
First, you didn’t originally say Casey; you said Casey/Roe, and the two are not the same thing.
Second, he mentioned it because, as your own quotation from the concurrence demonstrates, the undue burden from Casey was the standard for assessing the case. If either of the parties had argued that Casey itself was wrongly decided, and that the undue burden standard should be thrown out, he might have had to address that issue. But, as neither party was asking him to overturn Casey, he notes that fact in order to make clear that he can now move on to use the undue burden test from Casey as the basis of his analysis.
Look at the paragraph you quoted, as a whole. Its purpose in the concurrence is to set up, and make clear, the controlling case and the controlling standard that Roberts intends to use in deciding June Medical Services. This is important, because if he can use Casey (which is the same case the court’s majority used in Whole Women’s Health), it means that it becomes relatively easy for him to deploy the principle of stare decisis and strike down the Louisiana law.
It’s important to keep in mind that the Republican Party is not some single monolithic entity. There are two main factions in the party. The more numerous faction, that accounts for most of the voters, wants abortion stopped. For many of them, that’s their highest or even only priority. But the more powerful faction doesn’t give a damn about abortion or any other social issue, and just wants to further enrich those who are already rich (i.e., them). There aren’t enough rich people to form a viable political party, so they have to ally themselves with the social conservatives (who oppose abortion), but they’ve found that they can keep them in line by just repeatedly speaking, promising, and lying to them, without ever having to actually do anything. The social conservatives do have some control over the lower levels, state legislatures and a few House seats, but the Senate, Presidency, and Supreme Court are entirely within the grasp of the rich faction.
Casey and Roe are the two overarching cases which define modern abortion jurisprudence. Roe established the right, Casey redefined it but largely upheld Roe. If you overrule Casey, then you are overruling Roe as Casey said, in essence, “Roe is good law.”
Again, maybe I am reading too much into it, but when you make such a disclaimer that nobody asked you to overrule a particular case, you suggest that the result might have been different had someone asked you. Not a slam dunk, but it is pretty peculiar to say such a thing when nobody else did.
I mean, if a litigant asked the Court to strike down a law as being unconstitutional would you expect to see, “According to Marbury v. Madison, which no party has urged us to overrule, we have the power to determine the constitutionality of laws, so we will proceed under Marbury.” Would be pretty amazing, right? Would you think, “Shit, maybe he is open to reconsidering Marbury!”?
This is simply not true. It depends how you do it, and what aspects of the case you focus on.
For example, a court with justices that were so inclined could, if they wanted, overturn the “undue burden” standard established in Casey and replace it with “strict scrutiny,” as adopted under Roe. This would leave in place the fundamental right to abortion, established by Roe, and remove the watered-down standard for protecting that right that was adopted in 1992.
And in fact, as your quote from Roberts shows, he was not even talking about Casey as a whole; he was talking explicitly about the “undue burden standard announced in Casey.”
The Supreme Court is going to hear a direct challenge to Roe this December. What are the odds that it will indeed strike it down?
If I were a betting man, I’d still put my money on Roe being upheld, since Roberts is all but guaranteed to defect and Gorsuch or Kavanaugh probably would as well, but I’d like to hear how other Dopers guesstimate the odds.
My guess is Roe will be weakened significantly without being completely overturned but I don’t know how precisely this would be done. Will certainly be interesting to watch.
Politically the Republican-appointed justices are in a tricky position. They know that Roe is broadly popular and that overturning it outright would likely damage both the Republican party and the Supreme Court. OTOH doing nothing would be deeply demoralizing for social conservatives who have worked for decades for this moment and would also damage the Republican party.
I don’t know how precisely they will thread the needle but that is what I expect them to try to do.
I think it’s likely to be overturned, but even if that doesn’t happen, if the SCOTUS allows states to put up as many bullshit roadblocks as they want, it will be effectively illegal in many states anyway.
Anyway, I say overturned, and then the next step will be fetal personhood laws working their way up to SCOTUS, which could threaten the legality of abortion everywhere in the US.
5 votes overturn Roe
1 Roberts concurring in result but complaining that they could have done it without overturning Roe because of some odd ball theory that only he comes up with
3 dissents to uphold Roe–with Sotomayor writing the most contemptuous dissent in history.
Gorsuch will vote to overturn in a heartbeat because he’s an originalist true believer. Barrett will vote to overturn in line with her deeply held religious beliefs. And Thomas and Alito will vote to overturn because they’re cranky old conservatives. Roberts will oppose because he recognizes the full-on political disaster it will be for the court and the Republican Party.
If there’s any hope to prevent a majority for outright reversing Roe, it lies in Brett Kavanaugh. He’s a conservative jurist, but he’s also more of a Republican establishment type than Gorsuch, Thomas or Alito. He’ll be sensitive to the political ramifications of a complete reversal. I’m almost certain he will write the majority opinion, and will do so in a way that will hobble Roe without completely overturning it.
I could see it not being overruled outright, with a combination of the three liberals + Roberts and Kavanaugh stopping it. But at the same time, I think Roberts and Kavanaugh will join rulings that will significantly gut Roe to the point of making it nearly dead law, without “outright” overruling it.
There’s a lot of curtailments of abortion access you could rule on while still maintaining the theoretical constitutional protection of abortion not being outright banned before viability.
I think Roberts will fight really hard to try to convince one of his conservative colleagues to vote with him to not do an outright reversal of Roe, simply because Roberts clearly is very worried about how the court looks in terms of long-term legitimacy.
I disagree with @Velocity that Gorsuch is particularly likely to uphold. I think Roberts is very likely to uphold Roe, and Kavanaugh–if I was a betting man, is 60/40 likely to join with Roberts out of a desire to avoid the political ramifications. I think Gorsuch has no concerns like that, he’s going to rule his ideology. Alito and Thomas have said in many of their judicial rulings that Roe is wrong law and will obviously vote to overturn. Barrett is actually probably the one I’m least sure on, I think she’s not as predictable as a lot of lefties say, but I’d still (if I was betting) assume she’s a vote to overrule.
I’m wondering how an opinion would read that upholds Roe but at the same time upholds the MS law at issue. I can’t see one. The law clearly prohibits pre-viability abortions. Modify Roe by saying 10 weeks is the cutoff point? That would have smaller constitutional justification than Roe did.
Also keep in mind that if the Court was of the idea of avoiding the Roe question, it could have just denied cert. I don’t see a Thomas or Alito voting to grant cert unless they had a strong indication that there were five votes to overturn Roe and I don’t see the three libs voting to take the case for any reason; they had already won below.
This thread looks as good as any to bump for an ongoing oral arguments in the supreme court on the Mississippi abortion law. Based on what I’m hearing its sounding to me like a 5-4 split in favor of at least removing viability as a bright line, and most likely getting rid of Roe v. Wade entirely and leaving it up to the states.
Reading the summary of the arguments in the NY Times, it seems to be a near certainty, unless Roberts can get a couple of justices to rule narrowly and say that Roe is still a thing, although viability isn’t the dividing line. Even if that happens, the Mississippi law likely stands, which would get rid of abortions after 16 weeks, which really guts Roe and will just lead to the next state putting the line at 14 weeks or 6 weeks or whatever.
Since these states want to play Civil War 2 (because they hate being components of a country), and since we’re not going to start massing troops in this day and age, it might be time to start organizing an economic boycott of these states, I for one won’t buy a thing from a company that’s based in any of those “moral” shitholes.
This would be my guess. They make a tweak to viability without overtly going after Roe. Then Florida criminalizes abortion after the first 48 hours of pregnancy.
It gets appealed to SCOTUS who says “gee, how did this thing ever get so conflicted and confusing? We’re done trying to sort it out. If you want to have this right, win a Senate supermajority and pass a law (which we’ll probably also strike down).” Just absolute weasels and cowards.
I could be wrong, but I don’t think Roberts will get the other conservatives on board with a “keep Roe but lower the threshold” approach. Any ruling that affirms Roe, even obliquely, will be anathema to the pro-life movement. Repealing Roe is what Barrett and Kavanaugh have been groomed for their entire careers. They may blink, but I think it’s just as likely that they decide to rip off the band aid.
Also, prolonging the drip, drip, drip of litigating more and more restrictions on abortion access just delays the movement’s ultimate goal of outlawing abortion everywhere through a judicial finding that the fetus has a right to life. They need to put Roe behind them so they can start laying the groundwork for that one.
If Roe is indeed overturned, I predict that all the liberal news outlets that had been warning of dire consequences will suddenly sing a different tune and begin running articles titled “Why Roe’s Overturn is Not the End of the World” and point out how this could pave the way for Democrats to pass a federal nationwide pro-choice law upholding abortion nationwide and call Roe’s reversal a one-step-back-but-two-steps-forward thing.