There Is No Secret Republican Plan to Preserve Roe

I have a column in Reuters pointing out that contrarian claims that Republicans don’t actually want Roe overruled are based on a misreading of history:

Republican politicians and activists have an interest in suggesting that the overturning of Roe remains uncertain, if only to reassure pro-choice senators Susan Collins of Maine and Lisa Murkowski of Alaska, whose votes are among those needed for Kavanaugh’s confirmation. But some pundits who don’t support overruling Roe have made this argument too. “[O]nly Clarence Thomas would likely vote to overturn Roe v. Wade,” according to Kathleen Parker of the Washington Post. Roe is “not getting overruled,” asserts David Lat at Above the Law. William Saletan argues at Slate that Republicans don’t really want Roe overruled.

Saletan’s argument might seem persuasive at first glance. The Supreme Court has, after all, been controlled by justices nominated by Republican presidents publicly opposed to Roe v. Wade since 1991, so a conservative bench is not new. Roe is popular – a recent Kaiser Family Foundation poll found that two-thirds of Americans want to keep it – and as Saletan demonstrates, the battle for reproductive freedom intensifies when Roe is perceived to be under threat.

But the argument doesn’t withstand sustained inspection. Remember that Roe’s (partial) survival under Republican Supreme Courts is essentially a fluke, a combination of contingencies that is unlikely to be repeated next time, not a careful plan by Republican party elites to preserve Roe.

Consider Planned Parenthood v. Casey, the 1992 case that re-affirmed Roe while giving states more leeway to regulate abortion. Four justices believed that Roe should be overruled and two that it should be kept as is. Roe was saved, then, by a plurality opinion written by three justices: Sandra Day O’Connor, Anthony Kennedy, and David Souter. Looking at how these justices got to the court shows that Roe’s survival was not the product of a grand strategy.

Most importantly, Kennedy, the crucial vote, was only on the court because Ronald Reagan’s first choice – the fiercely anti-Roe Robert Bork – was voted down by the Senate. Had Reagan nominated Bork while Republicans still controlled the Senate, Roe would have been dead before George H.W. Bush left office.

And O’Connor and Souter are the product of another political era. Reagan nominated O’Connor, although she was known to be a moderate on abortion, to fulfill his pledge to nominate the first woman to the Supreme Court. Souter, who started out a moderate and became an outright liberal, was the nearly random product of political conflict within the Bush administration. Some officials within the Department of Justice distrusted the solidly conservative Ken Starr over a minor disagreement, and the first President Bush settled on Souter in large measure because two of his most influential advisers knew and admired Souter from New Hampshire.

The problem with expecting another Souter or O’Connor to save Roe, in short, is that an entire movement has sprung up to ensure that another Souter or O’Connor is never nominated, and Trump is following their advice to the letter.

And, again, the crucial question is not whether the Court explicitly announces that Roe has been overruled, but whether it allows states to eliminate access to abortion:

It is true, as far as it goes, that Chief Justice John Roberts’ court is unlikely to overturn the Roe v. Wade ruling before the 2020 elections. But the Supreme Court can nonetheless allow states to effectively ban abortion without explicitly overruling Roe. Many states have already successfully experimented with regulations that target abortion clinics, making it difficult or impossible from them to operate. Six states have only one remaining abortion clinic in part because of the oppressive regulatory framework.

In its 2016 decision in Whole Woman’s Health, the Supreme Court struck down a particularly harsh Texas law that would have required a majority of the state’s abortion clinics to close although there was no reason to believe that any of them were unsafe. It is virtually certain that the post-Kennedy court would have upheld the same law or even a more draconian version. And whether the opinion makes it explicit or not, this would be the de facto end of Roe v. Wade. A theoretical right to abortion means little to a woman who lives in a state in which she cannot obtain one – especially if the composition of the new court emboldens other states to pass similar legislation.