A number of states have passed first- and second-trimester abortion prohibitions in the past year or two. Some of these pieces of legislation, called “heartbeat bills,” prohibit abortion after the baby’s first sign of cardiac activity at six to eight weeks of pregnancy. Georgia governor Brian Kemp signed one of these bills this week.
Some sponsors of these bills may be motivated by the belief that they present an “ideal test case” for the Supreme Court. Others think that an abortion prohibition will “force” the Court to readdress Roe v. Wade. Neither of these assumptions is accurate. In fact, a prohibition on early abortions may be the type of law least likely to attract Supreme Court review.
First of all, the justices have given signs that they’re going to go slow on the abortion issue. And some legal commentators have suggested that Chief Justice Roberts will “manage” the pace of change. The justices declined to hear two abortion cases in December and have kicked the can down the road for months with others.
Some legal commentators have speculated that six justices will be needed in the “conservative majority” before the stage is properly set for an overruling case. This will take time and likely go beyond the 2020 election, requiring the reelection of President Trump.
Second, there are many abortion cases, some calculate as many as 20, in the federal courts at this time. Alabama’s “dismemberment law” prohibiting abortion, for instance, has been struck down by the lower federal courts, and the Supreme Court is considering whether to take the case (Harris v. West Alabama Women’s Center). But these may die in the lower courts. In January 2016, the Supreme Court refused to hear cases with first-trimester prohibitions from Arkansas and North Dakota.
Third, the Court simply doesn’t need a prohibition case to readdress Roe v. Wade. It can do so in any case in which an abortion limit arguably conflicts with Roe. As Justice Scalia wrote in 1989 in the Webster decision, “The only choice available is whether, in deciding that constitutional question, we should use Roe v. Wade as the benchmark, or something else.” Likewise, Justice Kennedy saw the Pennsylvania law in Casey as a “challenge” to Roe, even though the law contained no prohibition on abortion.
Fourth, and possibly most significantly, it has long been the media’s approach to covering the Supreme Court, even among those who know better, to characterize the justices as “approving” a law they uphold and “disapproving” a law they strike down. This is a position that the justices in the current five-member conservative majority would almost certainly disavow. A judge committed to applying the original public meaning of the Constitution would believe that his decision is a matter not of “approving” the public policy but of whether the law is consistent with the Constitution. For example, in the travel-ban decision last June (Trump v. Hawaii), Chief Justice Roberts wrote: “We express no view on the soundness of the policy.”
And yet if the Supreme Court upholds the constitutionality of an early prohibition of abortion in the context of overturning Roe v. Wade, the media will portray the conservative justices as having “approved” the abortion prohibition. It’s entirely possible that the justices want to avoid such a public position. And they can readily do so, given their complete discretion in choosing which cases to decide and on what time frame.
Thus, they could pick a non-prohibitory law that is challenged as conflicting with Roe as the vehicle to reexamine Roe. The Court did that in Webster in 1989 and Casey in 1992: Neither case involved an abortion prohibition, yet the Court reexamined Roe in both cases.
So, from an institutional standpoint, the justices might see it as more favorable to readdress Roe in a case involving an ultrasound informed-consent law, a law supported by majority public opinion, rather than address an early prohibition of abortion. Not that it will necessarily do so any time soon, or without a sixth justice.