The Abortion Scare Campaign Why Roe v. Wade and same-sex marriage are likely to survive after Kennedy.
https://www.wsj.com/articles/the-abortion-scare-campaign-1530573972?mod=cx_picks&cx_navSource=cx_picks&cx_tag=collabctx&cx_artPos=5#cxrecs_s
Some things in politics are predictable—a New Jersey tax increase, a “no” vote by Senator Rand Paul, and an abortion-rights scare campaign every time a Republican President makes a Supreme Court nomination. And sure enough, the predictions of doom for abortion and gay rights began within minutes of Anthony Kennedy’s resignation last week. These predictions are almost certainly wrong.
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“Abortion will be illegal in twenty states in 18 months,” tweeted Jeffrey Toobin, the legal pundit, in a classic of cool, even-handed CNN analysis soon after the resignation news. Democratic Senate leader Chuck Schumer was almost as definitive. “Whomever the president picks, it is all too likely they’re going to overturn health-care protections and Roe v. Wade,” the 1973 abortion-rights decision, Mr. Schumer declared. “We don’t need to guess.”
The first thing to keep in mind is that this is what Democrats and their media allies always say. They said it in 1987 when Justice Kennedy was nominated. They said it in 1990 about David Souter, again about Clarence Thomas in 1991, John Roberts and Samuel Alito in 2005, and Neil Gorsuch in 2017. They even claimed the Chief Justice might overturn Roe because his wife is a Roman Catholic. Mrs. Roberts is still waiting to write her first opinion.
The liberal line is always that Roe hangs by a judicial thread, and one more conservative Justice will doom it. Yet Roe still stands after nearly five decades. Our guess is that this will be true even if President Trump nominates another Justice Gorsuch. The reason is the power of stare decisis, or precedent, and how conservatives view the role of the Court in supporting the credibility of the law.
Start with the Court’s Obergefell ruling that legalized same-sex marriage in 2015. The ruling was only 5-4 and Justice Kennedy wrote the majority opinion with a formidable dissent by Chief Justice Roberts.
Yet there’s almost no chance the Chief would reverse Obergefell now. Tens of thousands of gay couples have been married across the U.S. since the ruling. They have changed their lives based on it. Is the Court now going to tell those couples that states can declare their marriages void? Or that their property rights under marriage laws are no longer valid?
A key part of the Court’s stare decisis calculation is “reliance interests,” or how and how many people have come to rely on a precedent. Chief Justice Roberts cited reliance interests in his Wayfair dissent on state internet sales taxes this term, and its logic is even more compelling for same-sex marriage.
A different stare decisis logic applies to Roe, which was one of the Court’s worst rulings but is now 45 years old and embedded in American law. While abortion is still hotly debated, the Court has reinforced the right many times.
Planned Parenthood v. Casey in 1992 superseded Roe with its “undue burden” test on states for imposing limits on abortion. In 2016 in Hellerstedt, the Court invoked that test to strike down a Texas law imposing stringent regulations on abortion clinics. In many other cases when the Court has upheld state restrictions, the core right was never challenged.
Our view, supported by more than a little reporting, is that even though they think Roe was wrongly decided, most of the current conservative Justices would shy from overturning it and handing abortion law entirely to the states. The exception is Justice Clarence Thomas, who has made his intentions clear.
Scientific advances have made abortions easy to obtain through medication in the early weeks of pregnancy, and making them illegal would create an enormous social uproar and invite an attack on the Court that Chief Justice Roberts in particular would not want. Judge Laurence Silberman of the D.C. Circuit Court of Appeals told us recently that his long-time friend and colleague Antonin Scalia told him before he died that even he would not have sought to overturn Roe today.
Ah, but didn’t five Justices only last week vote to overturn a 41-year-old First Amendment precedent on coerced speech on union fees? They did, but Abood had long ago become an outlier in the Court’s free-speech jurisprudence. It survived by a single vote even as the Court struck down other examples of speech coerced by governments.
The same cannot be said about the Court’s abortion precedents. A post-Kennedy Court is likely not to overturn Roe and its successors but it will probably uphold more state restrictions. This won’t please some social conservatives, but it would put U.S. law close to where American public opinion is—keeping abortion legal but making it rarer than it now is.
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Many on the left and right will disagree with this analysis for different reasons. Conservatives want to believe that Roe can still be repealed in toto, like Plessy v. Ferguson , and we admire their conviction. Liberals want to scare Americans to believe abortion rights are in peril so they can intimidate enough GOP Senators to defeat whoever Mr. Trump nominates to replace Justice Kennedy.
The headlines are already targeting GOP Senators Susan Collins, Lisa Murkowski and Shelley Moore Capito, and abortion is the political cudgel. Ms. Collins said over the weekend that she won’t vote to confirm a nominee who shows “hostility” to Roe. She isn’t likely to face such a choice.
No one on Mr. Trump’s list of nominees will claim to want to overturn Roe—and not because they are lying. In their caution and deference to precedent, they will be showing proper conservative respect for the law and the reputation of the Court.
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