Bench Memos

Law & the Courts

Best Opportunity the Supreme Court Will Ever Have to Overturn Roe

The state of Mississippi’s certiorari petition in Dobbs v. Jackson Women’s Health Organization is teed up to be voted on at the Court’s conference on Friday. The petition concerns Mississippi’s Gestational Age Act, enacted in 2018, which allows abortions after 15 weeks of gestational age only in medical emergencies or in instances of severe fetal abnormality. The lower courts reasonably concluded that the Act is inconsistent with Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

For the reasons I outline here, it’s long past time for the Court to overrule Roe (and Casey) and to restore abortion policy to the states, where the Constitution leaves it.

This case provides an excellent vehicle for overruling Roe. Indeed, it is unlikely that there will ever be a more opportune moment. Consider:

1. Now that Justice Amy Coney Barrett has replaced Justice Ruth Bader Ginsburg, the Court has a special opportunity to overrule Roe by a supermajority. Specifically, there ought to be (at least) six justices on the Court who recognize the fundamental illegitimacy of the Roe regime. (I say “at least” because I suspect that even Roe’s most ardent defenders on the Court recognize its illegitimacy.)

2. If the Court overrules Roe, that overruling promises to be durable. Given the ages of the justices who would presumably be part of such an overruling, there is ample reason to expect an anti-Roe majority to persist for a long time.

3. Overruling Roe in the first six months of a presidential term will afford the maximum amount of time to the democratic processes in the states to address, and provisionally resolve, abortion policy before the next presidential election. Although this return to the states will be tumultuous, it is also very likely to yield a mix of results that most people will find satisfactory.

The Court-packing threat—which never struck me as serious—is now dead. Precisely because the democratic processes would quickly adjust to a post-Roe regime, I think it’s farfetched that overruling Roe would revive that threat.

4. Laws like Mississippi’s have broad public support. According to an NPR/PBS NewsHour/Marist poll from last year, only 29% of Americans think that abortion should generally be allowed after the first three months of pregnancy (13 or so weeks). That broad public support is likely to grow when Americans learn that—according to this Center for Reproductive Rights database—France, Italy, Germany, Spain, Norway, Switzerland, and lots of other European countries have a gestational limit of 14 weeks or earlier.


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