# What conditions would it take for SCOTUS to indeed uphold the Alabama/Georgia abortion laws? **URL:** \ **Category:** Politics & Elections\ **Created:** [May 27, 2019, 5:32am UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587 "2019-05-27T05:32:32Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [May 27, 2019, 5:32am UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/1 "2019-05-27T05:32:32Z")
The math just isn’t there; the 5-4 conservative majority contains two justices - Roberts and Alito - who would likely side with Roe out of stare decisis and the Alabama/Georgia laws are just written in such a way that they’re too severe to be upheld. The only way this could plausibly result in Roe being overturned would be if Ginsberg and Breyer abruptly died or retired in the very near future and were replaced by pro-life stalwarts before a case is heard. Any other plausible other way Roe is overturned? I can’t see it. ---
**Author:** ![SamuelA](https://avatars.discourse-cdn.com/v4/letter/s/c77e96/32.png) [@SamuelA](https://boards.straightdope.com/u/SamuelA)\ **Post date:** [May 27, 2019, 5:46am UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/2 "2019-05-27T05:46:25Z")
That’s an awfully slim thread to prevent the coathanger days from returning. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 27, 2019, 4:31pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/3 "2019-05-27T16:31:19Z")
The first condition for the Court to overturn Roe would be to get a majority of justices not nominated by Republicans. The very first requirement for any justice to be considered by a Republican is that they won’t overturn Roe, because if they did, then Republican politicians wouldn’t have any way to rally their base for elections, and so wouldn’t be able to implement their real priorities. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [May 27, 2019, 5:26pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/4 "2019-05-27T17:26:37Z")
> [@Chronos](#): > > The very first requirement for any justice to be considered by a Republican is that they won’t overturn Roe, because if they did, then Republican politicians wouldn’t have any way to rally their base for elections, and so wouldn’t be able to implement their real priorities. People say this over and over again but it doesn’t make it any more true. This is akin to a broken-window fallacy; the notion that politicians can’t actually give their base what they want because…their base would be satisfied, or something. Nobody says “Democrats can’t elect a candidate who will actually deliver on same-sex marriage, healthcare reform, and a social net because if they did…their voters would no longer be clamoring for same-sex marriage, healthcare reform, and a social net.” It’s nonsensical. Republican voters, like Democratic voters, have a wish list a mile long. The banning of abortion is just one of those items. If abortion were banned, there’s still a thousand other items on their wish list yet to be implemented. They’d be rallied to elections for those. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 27, 2019, 5:51pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/5 "2019-05-27T17:51:15Z")
The difference is that Democratic politicians actually want same-sex marriage, healthcare reform, and so on. The reason they want to hold office is to put policies like that into place, so it would be counterproductive to forgo them. Republican politicians, by contrast, don’t give a damn about abortion. It’s just a means to an end to them, with that end being to move more money into the hands of the rich (including themselves). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 27, 2019, 5:56pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/6 "2019-05-27T17:56:30Z")
> [@Velocity](#): > > The math just isn’t there; the 5-4 conservative majority contains two justices - Roberts and Alito - who would likely side with Roe out of stare decisis and the Alabama/Georgia laws are just written in such a way that they’re too severe to be upheld. The only way this could plausibly result in Roe being overturned would be if Ginsberg and Breyer abruptly died or retired in the very near future and were replaced by pro-life stalwarts before a case is heard. > Any other plausible other way Roe is overturned? I can’t see it. I think Alito would almost certainly overturn Roe. Roberts would seem to, be he has been squishy of late. Kavanaugh is still an unknown quantity and so far he is at least not as conservative as Gorsuch. We either have the vote 5-4 right now or are as many as two votes shy. These states are either banking on having the votes now or banking on Ginsburg or Breyer retiring in the next two years before the case hits the Supreme Court. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [May 27, 2019, 7:22pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/7 "2019-05-27T19:22:32Z")
> [@UltraVires](#): > > I think Alito would almost certainly overturn Roe. Roberts would seem to, be he has been squishy of late. Kavanaugh is still an unknown quantity and so far he is at least not as conservative as Gorsuch. We either have the vote 5-4 right now or are as many as two votes shy. These states are either banking on having the votes now or banking on Ginsburg or Breyer retiring in the next two years before the case hits the Supreme Court. Gorsuch is conservative but also conservative on the law. He’s not about to overturn a previous SCOTUS dec, same with Roberts- they would allow “nibbling” sure, but never a overturn, and the new laws amount to that, so they will slap them down, i predict… Kavenaugh is a hired gun to overturn Roe. ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [May 27, 2019, 7:32pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/8 "2019-05-27T19:32:22Z")
> [@DrDeth](#): > > Gorsuch is conservative but also conservative on the law. He’s not about to overturn a previous SCOTUS dec, same with Roberts- they would allow “nibbling” sure, but never a overturn, and the new laws amount to that, so they will slap them down, i predict… Kavenaugh is a hired gun to overturn Roe. Breyer does not share your optimistic outlook: > [@Associate Justice Stephen Breyer](#): > > The majority has surrendered to the temptation to overrule Hall, 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. I’m going to assume he has a better understanding of the thinking of the Roberts 5 on this issue than any of us armchair analysts. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [May 27, 2019, 7:51pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/9 "2019-05-27T19:51:06Z")
> [@Kolak\_of\_Twilo](#): > > Breyer does not share your optimistic outlook: > > I’m going to assume he has a better understanding of the thinking of the Roberts 5 on this issue than any of us armchair analysts. Sure but that’s a entirely different type of case. But I could be wrong, we will see. ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [May 27, 2019, 7:56pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/10 "2019-05-27T19:56:54Z")
> [@DrDeth](#): > > Sure but that’s a entirely different type of case. But I could be wrong, we will see. The last sentence of that quote from Breyer is him suggesting FUTURE cases are at risk of reversal due to the conservative 5 no longer caring about precedent. Not sure how that isn’t clear. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [May 27, 2019, 8:56pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/11 "2019-05-27T20:56:48Z")
> [@Kolak\_of\_Twilo](#): > > The last sentence of that quote from Breyer is him suggesting FUTURE cases are at risk of reversal due to the conservative 5 no longer caring about precedent. Not sure how that isn’t clear. And we are _now_ in the future that that case was positing. Not sure how that isn’t clear. As to the OP. The answer is purely and simply: if they feel like it. Not sure how that isn’t clear. What are the consequences to them if they do? Enormous approval and huzzahs from the half of the country that they identify with. Do you really think they wouldn’t love that? Their not voting down Roe is the surprise that would have to be explained, not their overturning it. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 27, 2019, 9:05pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/12 "2019-05-27T21:05:27Z")
> [@DrDeth](#): > > Gorsuch is conservative but also conservative on the law. He’s not about to overturn a previous SCOTUS dec, same with Roberts- they would allow “nibbling” sure, but never a overturn, and the new laws amount to that, so they will slap them down, i predict… Kavenaugh is a hired gun to overturn Roe. Well, these laws in Georgia and Alabama are meant to test that. I’m sure both laws will be struck down at the District Court level and in the Court of Appeals. Then we get to see if the Court grants cert on either. If they grant cert on the Alabama law, then we can know if there is a willingness, or a belief in the willingness of 5 Justices to make a bold pronouncement on Roe/Casey. As it only takes 4 votes to grant cert, the conservatives would only do so if they believed that they had Roberts on board. Conversely if the 4 liberals granted cert, they would only do so if they believed that Roberts was on their side and could cement the precedent even further. I doubt that either side would risk it with the outcome so uncertain. If they grant cert on the Georgia law, it would be because Roberts is willing to “nibble” as you said. That’s more likely, but I think that for now, barring a Ginsburg or Breyer retirement, everyone will stay away from both laws. I don’t know how much the Justices talk to each other, but if I was Clarence Thomas, let’s say, I would definitely ask Roberts point blank after a few scotches how he will vote on overturning Roe. It is almost like the SSM cases that led to Obergefell. Millions will be spent in legal fees to make one single person (in that case Kennedy, this one Roberts) finally declare what his vote is. ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [May 27, 2019, 9:19pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/13 "2019-05-27T21:19:04Z")
There’s this case - [Box v. Planned Parenthood](https://www.supremecourt.gov/docket/docketfiles/html/public/18-483.html) - which is out of Indiana and deals with some pretty strict restrictions placed on abortions there. What is weird about this case is that the Court has been considering it since early January and has sent it back to conference now fifteen times. What’s weird about this to me is that this case is a pretty good vehicle if the Court wanted to leave _Casey_ technically intact but in practice remove the “undue burden” standard. It’s even a decent case if they want to overrule _Casey_ entirely. Or they could send a message by denying certiorari if they didn’t want to hear any such cases right now. I have no idea what it means that they’re just keeping this one in holding for such a long period. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 27, 2019, 9:35pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/14 "2019-05-27T21:35:14Z")
> [@Ambrosio\_Spinola](#): > > There’s this case - [Box v. Planned Parenthood](https://www.supremecourt.gov/docket/docketfiles/html/public/18-483.html) - which is out of Indiana and deals with some pretty strict restrictions placed on abortions there. What is weird about this case is that the Court has been considering it since early January and has sent it back to conference now fifteen times. > > What’s weird about this to me is that this case is a pretty good vehicle if the Court wanted to leave _Casey_ technically intact but in practice remove the “undue burden” standard. It’s even a decent case if they want to overrule _Casey_ entirely. Or they could send a message by denying certiorari if they didn’t want to hear any such cases right now. I have no idea what it means that they’re just keeping this one in holding for such a long period. That case is different in kind. Two laws are at issue. The first requires that abortion babies/fetuses be buried or treated in a dignified manner. The second outlaws abortion based upon a child’s disability, its race, or its sex. I don’t know why the first law is controversial or impacts Roe/Casey. It does not impact abortion in any way at all, it merely requires certain methods after the abortion has taken place. It doesn’t stop a single woman from having an abortion and IMHO should not be a part of abortion jurisprudence. The second law is a stroke of genius from pro-lifers. On one hand you have the woman’s right to an abortion, but it must be unseemly, even to the most ardent pro-choice people that a woman would say, “Now, lets see. Who did I get pregnant by? Was it the white guy I was dating or was it the black dude I had a one night stand with in a bar? Because if it was the white dude, I want a nice white baby, but if it was the black dude, I just don’t want one of them in the family.” The Downs Syndrome exception seems odd. Going on the theory that a child is a life, it seems to put an unborn child at a disadvantage for not having a genetic abnormality, sort of a reverse eugenics rule. I think it keeps being relisted because how in the world can someone write a consistent opinion there either way? To keep Roe/Casey and follow its logic, a woman must be allowed to have a racist belief in what child she aborts, but that holding would be abhorrent to the progress we have made in society. A restaurant owner cannot refuse to serve a black person a sandwich, but a woman could kill her unborn child for being black? That doesn’t sound like something we should condone in society. But what legal principle could be cited to allow that distinction? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 27, 2019, 9:35pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/15 "2019-05-27T21:35:19Z")
> [@Velocity](#): > > People say this over and over again but it doesn’t make it any more true. This is akin to a broken-window fallacy; the notion that politicians can’t actually give their base what they want because…their base would be satisfied, or something. Nobody says “Democrats can’t elect a candidate who will actually deliver on same-sex marriage, healthcare reform, and a social net because if they did…their voters would no longer be clamoring for same-sex marriage, healthcare reform, and a social net.” It’s nonsensical. > > Republican voters, like Democratic voters, have a wish list a mile long. The banning of abortion is just one of those items. If abortion were banned, there’s still a thousand other items on their wish list yet to be implemented. They’d be rallied to elections for those. It’s not Republican voters who are the problem. It’s Evangelical voters. Many of them only vote for Republican candidates because of a single issue: abortions. Take abortions out of the picture and they’ll stop supporting Cyrus. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 27, 2019, 9:58pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/16 "2019-05-27T21:58:35Z")
And dodging cases is exactly what you’d expect if I’ve got the right of it: They don’t want to overturn Roe, because that’d remove the voter incentive, but they also don’t want to affirm it, because that would reveal the charade. But just stalling cases indefinitely doesn’t make any headlines, and still lets politicians say “well, golly, we’d love to overturn Roe, but those liberals just keep stopping us, so you need to elect more Republicans”. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 27, 2019, 10:27pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/17 "2019-05-27T22:27:48Z")
> [@Chronos](#): > > And dodging cases is exactly what you’d expect if I’ve got the right of it: They don’t want to overturn Roe, because that’d remove the voter incentive, but they also don’t want to affirm it, because that would reveal the charade. But just stalling cases indefinitely doesn’t make any headlines, and still lets politicians say “well, golly, we’d love to overturn Roe, but those liberals just keep stopping us, so you need to elect more Republicans”. Why would the Justices be in on this charade? They have a job with life tenure. Do you think in Casey that the four dissenters (Rehnquist, Scalia, White, and Thomas) all got together and said, Shit, we need to get Kennedy, O’Connor, and Souter to vote on the other side because if one of them votes with us, then our overlords in the Republican party will disown us! ---
**Author:** ![Bijou\_Drains](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bijou_drains/32/2814_2.png) [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)\ **Post date:** [May 27, 2019, 11:32pm UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/18 "2019-05-27T23:32:18Z")
> [@Little\_Nemo](#): > > It’s not Republican voters who are the problem. It’s Evangelical voters. Many of them only vote for Republican candidates because of a single issue: abortions. Take abortions out of the picture and they’ll stop supporting Cyrus. as people have said , they will still have flag burning, prayer in school, gay marriage, and a long list of issues to get worked up over. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 29, 2019, 1:02am UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/19 "2019-05-29T01:02:58Z")
> [@Ambrosio\_Spinola](#): > > There’s this case - [Box v. Planned Parenthood](https://www.supremecourt.gov/docket/docketfiles/html/public/18-483.html) - which is out of Indiana and deals with some pretty strict restrictions placed on abortions there. What is weird about this case is that the Court has been considering it since early January and has sent it back to conference now fifteen times. > > What’s weird about this to me is that this case is a pretty good vehicle if the Court wanted to leave _Casey_ technically intact but in practice remove the “undue burden” standard. It’s even a decent case if they want to overrule _Casey_ entirely. Or they could send a message by denying certiorari if they didn’t want to hear any such cases right now. I have no idea what it means that they’re just keeping this one in holding for such a long period. And a per curiam opinion on that today: [Box v. Planned Parenthood of Indiana and Kentucky, Inc., 139 S. Ct. 1780 | Casetext Search + Citator](https://casetext.com/case/box-v-planned-parenthood-of-indiana-and-kentucky-inc) A summary reversal of the fetal tissue ban and declining to review the sex/race/disability ban. Thomas concurs. Looks like the Court is saying hell no, we aren’t looking at abortion cases right now, so you states cut it out. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 29, 2019, 1:12am UTC](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587/20 "2019-05-29T01:12:14Z")
> [@Opinion](#): > > Our opinion likewise expresses no view on the merits of the second question presented, i.e., whether Indiana may prohibit the knowing provision of sex-, race-, and disability- selective abortions by abortion providers. Only the Seventh Circuit has thus far addressed this kind of law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals. See this Court’s Rule 10. > [@Thomas](#): > > Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is duty bound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion Yes, I think this was definitely a shot across the bow of states and saying that we aren’t yet ready to jump into overruling Roe. [Next page](https://boards.straightdope.com/t/what-conditions-would-it-take-for-scotus-to-indeed-uphold-the-alabama-georgia-abortion-laws/834587.md?page=2)