The Corner

Law & the Courts

Heartbeat Bills: The Tactical Question

(Brendan McDermid/Reuters)

As someone who’d like to see Roe v. Wade obliterated as quickly as humanly possible, I’ve been following with interest the intra-conservative debate over “heartbeat” bills — strict abortion policies that clearly violate the Supreme Court’s abortion jurisprudence, passed in the hopes that they will “force” the Court to take up the issue.

The key question boils down to this: How likely is the Court to oblige?

If the Court just ignores these bills, Jonathan Last is right. They waste pro-lifers’ energy, alienate moderates (especially when they lack basic exceptions, such as for rape, which is a truly astounding miscalculation even if heartbeat bills in general are a good idea), and essentially write Planned Parenthood’s fundraising emails for them.

But if these bills accelerate the process of overturning Roe, or even cause Roe to be overturned when otherwise it never would be, the payoff is immense. The Guttmacher Institute says there were more than 900,000 abortions in 2014, and the sooner that states are freed to reduce that number however they see fit, the more lives we’ll save. Many states will have to go very slowly in regulating abortion, so as to stay in line with public opinion, but even so there’s a big advantage to having the legal obstacle to such regulations fully out of the way. And some states won’t have to move all that slowly, it seems, given the wave of aggressive new laws enacted by democratically elected state governments.

I think a total backfire — where the Court takes a case and actually upholds Roe — is unlikely, so I would argue these bills are worth it even if their chance of accelerating the process is fairly low, maybe as low as, say, 10 or 20 percent. It’s a situation where the downside is certain but modest in size (those fundraising emails have already been sent, those moderates already annoyed), while the upside is enormous but of unclear likelihood.

So where should we peg that probability? Certainly below 50 percent. These laws will be struck down in the lower courts, which are bound by precedent and can check a rogue judge long before the Supreme Court has to get involved. (Whatever a district judge decides, the road to the Supreme Court will run through an appeals-court panel, which itself can be checked by “en banc” review by a bigger panel.) It will be entirely up to the Supreme Court — four members of which must vote to hear a case — whether it wants to blast Roe out of the water in one fell swoop or take a more gradual approach, and some conservative justices seem temperamentally inclined to the latter approach. Some folks even say we’ll need a sixth conservative judge to go the distance on Roe, rather than settling for a gentle loosening of some of the restrictions on states.

In other words, these laws don’t “force” the Court to do anything, and in all likelihood it won’t. But still, they give it the opportunity to. Is the chance of these laws’ spurring the Court to go for it so low that we can basically dismiss it, along with the lives we’d save by accelerating Roe’s demise? Maybe I’m overly optimistic about the originalist justices we’ve worked so hard to get on the Court, and maybe I’m trying too hard to forget Casey, in which a majority-Republican-appointed Court upheld the core of Roe in 1992. But I’m not quite sold on that.

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