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How the Supreme Court Kills Roe v. Wade

With Anthony Kennedy's retirement, the high court may deliver a blow to abortion rights slowly—or all at once. Here are the potential scenarios.

Chip Somodevilla/Getty Images

In 1992, the Supreme Court surprised the nation yet again with a ruling on abortion. Many observers expected that the justices would use Planned Parenthood v. Casey to strike down Roe v. Wade, or at least sharply curtail the 1973 decision’s holding that the Constitution guarantees a woman’s right to an abortion. Four of the justices had indicated three years earlier, in Webster v. Reproductive Health Services, that they would vote to overturn the landmark ruling.

Indeed, notes from the court’s retired justices indicated that after oral arguments in Casey, there were five votes to strike down Roe. Then Justice Anthony Kennedy changed his mind. He crafted an unusual plurality decision with justices Sandra Day O’Connor and David Souter that jettisoned Roe’s trimester framework for evaluating when states can restrict abortion. In its place, the troika erected a new legal standard: Courts must evaluate whether those restrictions are an “undue burden” on a woman’s right to obtain the procedure.

Justice Harry Blackmun, Roe’s wizened author, could not mask his surprise at the reversal of fortune. “All that remained between the promise of Roe and the darkness of the [Webster] plurality was a single, flickering flame,” he wrote in his concurring opinion. But Blackmun also knew the fight over reproductive rights was not over: “I fear for the darkness as four justices anxiously await the single vote necessary to extinguish the light.”

Twenty-six years later, the darkness has arrived. President Donald Trump’s nomination to the high court of Brett Kavanaugh, a reliably conservative judge who currently serves on the D.C. Circuit Court of Appeals, will likely end the precarious balance that has protected abortion rights for the last quarter-century. Kennedy occasionally voted to uphold some restrictions in the years that followed Casey, but his presence effectively blocked any outright attempt to overturn Roe.

Kavanaugh has never explicitly said he would vote to overturn the 1973 decision. This isn’t surprising, since judges do not disclose how they would decide cases before they hear them. Nonetheless, he is the product of a concerted effort by the conservative legal movement to build a Supreme Court in its own image. His most prominent opinion on the subject came last year when he dissented from a D.C. Circuit ruling that allowed an undocumented immigrant teenager to obtain an abortion while in federal custody.

If Kavanaugh proves the crucial fifth vote to overturn Roe, there are multiple ways in which the Supreme Court could do so. The Roberts Court has already shown itself willing to overturn major precedents on issues like voting rights and organized labor in recent years. Those rulings provide a map to how the court’s conservative majority rewrites the nation’s understanding of the Constitution—and how it could do so again to eliminate abortion rights.

In theory, any abortion case that reaches the high court after Kavanaugh joins it could provide the justices with a vehicle to attack Roe. Kathryn Kolbert, the lawyer who argued for Planned Parenthood when Casey came before the Supreme Court in 1992, told Mother Jones this week that she agreed with legal journalist Jeffrey Toobin’s prediction that abortion will be illegal in 20 states within 18 months.

It’s uncommon for the Supreme Court to overturn one of its own decisions. Precedent is a cosmic force akin to gravity in the American legal system, and the justices generally adhere to the legal principle of stare decisis, a Latin phrase that means “let the decision stand.” Last year, the Government Printing Office identified 235 cases in which the court explicitly reversed a previous decision it had made over the past two centuries. Some of the court’s reversals are more momentous than others, of course. The Casey troika, for example, likened the prospect of overturning Roe to the court’s decision a half-century earlier to demolish the legal architecture of racial segregation in Brown v. Board of Education.

“Whether or not a new social consensus is developing on [abortion], its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense,” Kennedy, O’Connor, and Souter wrote in their joint opinion. “A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.”

That warning’s logic could dissuade today’s justices from striking down Roe at the first available opportunity. Conservatives on the Roberts Court have taken an incremental approach to reversing course on major constitutional questions—voting rights, for example.

For almost a half-century, Section 5 of the Voting Rights Act of 1965 was a potent bulwark against efforts to obstruct Americans’ lawful right to cast a ballot. It requires certain state and local jurisdictions to obtain “preclearance” from federal authorities before changing their election laws. Giving the federal government so much influence over some states’ election laws stretched the outer limits of American federalism, but the Supreme Court signed off on the law in a 1966 case, Katzenbach v. Morgan, ruling that Section 5 was a necessary remedy to segregationist efforts to restrict black Americans’ voting rights.

The Roberts Court first opened the door to challenging Section 5 in the 2009 case Northwest Austin Municipal Utility District No. 1 v. Holder. Chief Justice John Roberts wrote in his majority opinion that such strong medicine may no longer be justified and warned that Section 5 raised “serious constitutional questions.” But Roberts and his colleagues avoided those questions by resolving the case’s underlying dispute on statutory grounds instead.

Four years later, in Shelby County v. Holder, the court’s conservative majority returned to finish the job. Writing again for the majority, Roberts concluded that Section 5’s implementation was no longer tenable. He extensively cited the warnings he had put forth in Northwest Austin to reiterate that “things have changed in the South” and that the VRA violated the “equal sovereignty” of the states. In dissent, Justice Ruth Bader Ginsburg compared the court’s decision to “throwing away your umbrella in a rainstorm because you are not getting wet.”

Roberts and the other four conservative justices in the Shelby County majority did not explicitly overturn Katzenbach or strike down Section 5 along the way. What the court actually ruled unconstitutional was the formula crafted by Congress in Section 4(b), which determines which jurisdictions fall under Section 5. Congressional Republicans have subsequently refused to draft a new formula to replace it. Without one, Section 5 is effectively a dead letter, with dire consequences for the integrity of American democracy.

The post-Kennedy Supreme Court could take a similar path toward overturning Roe and Casey by casting doubt on them in its next rulings on abortion, then using those rulings to justify further attacks on the precedents down the road. With Shelby County, the Roberts Court took only one step to go from the status quo to a counter-revolution for voting rights. But that process could also unfold over a series of multiple cases, as it did with the conservative justices’ campaign against public-sector unions.

In the 2012 case Knox v. SEIU, the court began questioning the constitutionality of “fair-share” fees that were collected by public-sector unions from government employees who weren’t dues-paying members of their workplace’s union, but who still enjoyed benefits secured by the union’s collective-bargaining efforts. The Supreme Court first approved the practice, in the 1977 decision Abood v. Detroit Board of Education, as a way to avoid a free-rider problem and ensure “labor peace.”

Justice Samuel Alito, writing for the majority in Knox, called Abood an “anomaly” in the court’s First Amendment jurisprudence. Conservatives have often argued that state laws allowing these unions fees are a form of unconstitutional compelled speech, because workers are forced to subsidize an organization they do not support. Two years later in Harris v. Quinn, Alito wrote another majority opinion that called Abood “questionable on several grounds,” before resolving the case by other means.

“Readers of today’s decision will know that Abood does not rank on the majority’s top-ten list of favorite precedents—and that the majority could not restrain itself from saying (and saying and saying) so,” Justice Elena Kagan wrote in her dissent from Harris. In 2015, the court took up Friedrichs v. California Teachers’ Association, a case that put the question of overturning Abood directly before the justices. Justice Antonin Scalia’s death the following spring led to a 4-4 split that set no national precedents on whether Abood remained good law.

Then, last month, the guillotine finally dropped. In Janus v. AFSCME, Local 31, the Supreme Court’s five conservative justices ruled that fair-share fees violated the First Amendment’s prohibition against compelled speech and overturned the 1977 decision that had upheld them. “Today, the Court succeeds in its 6-year campaign to reverse Abood,” Kagan wrote in a dissent joined by the other three liberal justices. The decision will likely have significant consequences for the financial future of public unions, hitting American organized labor hard where it is strongest.

There’s a more insidious way that the post-Kennedy Supreme Court could attack abortion rights. The justices may decline to explicitly overturn Roe and Casey, acknowledging the weight of precedent after a half-century of decriminalized abortion in American life. At the same time, they could achieve similar ends by refusing to strike down onerous restrictions on abortion providers and clinics passed by state legislatures.

The court already came close to pursuing this path in 2016 in Whole Woman’s Health v. Hellerstedt, the court’s most significant abortion-related decision since Casey. That case centered on a series of regulations passed by Texas lawmakers that targeted clinics where women obtained the medical procedure. The state defended the regulations, which required the clinics to meet the building and safety requirements of hospital surgical centers and for the participating doctors to have admitting privileges at hospitals within a 30-mile radius, as necessary to protect the women’s health.

Had the court sided with Texas, however, the regulations would have forced all but a handful of clinics that provide abortions in the state to close. The impact would have been most acutely felt in the state’s vast rural areas where local hospitals are sparse. The court instead ruled in a 5-3 decision in 2016 that the regulations ran afoul of Casey’s holding by placing an undue burden on women who seek abortions. Without comment, Kennedy joined Justice Stephen Breyer’s majority opinion in favor of the clinics, which reiterated what Kennedy himself had outlined in Casey more than two decades earlier. If similar regulations reach the court again, the retiring justice’s successor may not be inclined to do the same.

Lastly, there’s a more improbable—but also more far-reaching—way that the Supreme Court could gut abortion rights in America. In Roe, Blackmun concluded that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” If it did, he noted, then “[Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.” Since then, some anti-abortion groups, lawmakers, and jurists have sought to extend legal personhood to fetuses through other means, with varying degrees of success.

Most legal arguments for reversing Roe and Casey focus on the constitutional right to privacy, contending that the court should never have extended it to cover abortion in the first place. If those arguments prevail, it would once again be up to the states to decide whether to allow or forbid the procedure. On the other hand, if the court rules that a fetus counts as a person under the Fourteenth Amendment, then abortion would be legally indistinguishable from murder and effectively banned across the United States. Only a constitutional amendment or a future Supreme Court ruling could then undo such a decision, and that would likely take decades of effort from abortion-rights advocates—if it would happen at all.