The end of “Roe v. Wade” seems nigh. Predictably, the political left is going totally mad both in the US and worldwide, besieging the homes of Justices and threatening to “burn the Court down”. The escalation is egged on by certain commentators: it is said that if the 1973 Decision, which fabricated a “constitutional right to abortion” out of thin air and deprived the legitimate, democratically elected, legislators of their right to regulate the matter in line with the electorate’s actual policy preferences, falls, not only abortion, but also other so-called “privacy rights” (such as the right to sodomy, to same-sex marriage, to contraception, to gender self-definition, etc.) will all go out of the window.
This is, of course, nonsense. If Roe v. Wade is reversed, the only effect will be that each of the 50 US States can define its own policy regarding abortion. Theoretically, they could of course all adopt laws that outlaw abortion,but that is hardly likely. Some will adopt more restrictive, others more permissive regulations. But even in the most “conservative” jurisdictions there will not be a total ban. The Mississippi statute, which is at the focus of the case pending before the Supreme Court, regulates abortion in a less restrictive manner than most European jurisdictions do: it allows abortion up until the 15th week of pregnancy, whereas in most European countries that period is shorter.
There still is speculation that the draft decision that was, in an appalling breach of faith, leaked to the press last week may not be the final word. It is said that Chief Justice John Roberts is not willing to go along with the draft and instead would favor a “compromise” that would stop short of reversing Roe v. Wade and instead leave intact, at least in theory, the “constitutional right to abortion”. He is, as one hears, working hard to convince some of his fellow Justices to join him in that approach.
This is, however, not likely to happen. In the end, Roberts will join the conservative majority in formally reversing the Roe Decision. He does not have a realistic alternative.
Technically speaking, the question before the Court is not whether Roe v. Wade should be reversed or upheld, but whether the Mississippi statute that will be allowed to stand. There is a clear 6-3 majority of judges to let it stand, with only the three militant pro-aborts (Sotomayor, Kagan, Breyer) against. This much was clear even during the hearing, and it was what caused Sotomayor to throw a tantrum in which she revealed the intellectual weakness of her position: she was not capable of developing even one single argument to explain why the US Constitution actually contains the right the 1973 Decision claimed it contains; instead, her mantra was that a “settled question” must in no case be reopened, no matter how ill-reasoned the decision through which that question was settled. If that were indeed so, there would still be slavery and racial segregation in the US, but fortunately it isn’t. Sticking to a precedent that everyone knows to be flawed just because one likes the outcome is not a “progressive” stance, but conservatism of the worst sort and unworthy of a supreme judicial organ.
The question is not whether the Mississippi statute will stand, but on what grounds it will be left standing. It appears (and already appeared at the hearing back on 1 November 2021) that Roberts would prefer a compromise approach in which Roe v Wade is not explicitly overturned, but instead it is somehow argued that the Mississippi statute is compatible with it. (To be precise, it seems an impossibility to declare the Mississippi statute compatible with the three-trimester-approach in the original Roe Decision, that of 1973, but perhaps with some twisting and tweaking it could be claimed that it meets the “viability” criterion set in Casey v. Planned Parenthood (1992), which actually replaced the original Roe v. Wade doctrine. In other words, it could be claimed, somewhat spuriously, that thanks to recent medical progress already a 15-weeks-old fetus could be considered “viable”.)
Such an approach would try to satisfy social conservatives, but it would shirk the real, the constitutional, issue. But in order to make it work, Roberts would have to win over not just one of the justices who allegedly are willing to go along with the leaked Alito draft, but all of them (except perhaps Alito himself): otherwise it will not become the majority opinion. The court would then give a horrible impression of internal division: there would be a clear majority for letting the Mississippi abortion ban stand, but there would be no majority for any clear and principled reasoning why it is left standing. (It seems highly improbable that Roberts could woo any of the three pro-abortion fundamentalists into accepting that the Mississippi abortion ban should stand: the only thing they are interested in is to keep abortion “legal” at all cost, no matter what the Constitution actually says. They have no interest in signing up to an opinion that would leave Roe only theoretically intact, while in fact allowing new abortion restrictions.
Roberts’s main concern is perhaps not the soundness of doctrine, but rather the Court’s standing with the public. But the Court will look weak rather than strong if a landmark decision like this is reached only by a narrow margin; it will even weaker if Justices seem unable to agree how to justify the majority decision.
For that reason, Roberts will ultimately go along with the Alito draft.
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