Now that Judge Barrett’s confirmation to Justice Barret seems a foregone conclusion, what about the implications? Progressives are having conniption fits over the possibility of the overturning of Roe v. Wade. Let’s take a look at where the law is now, and how it got there, and perhaps most importantly, how it might change with a Justice Barrett replacing Justice Ginsburg.
On January 22, 1973, the Supreme Court issued a 7–2 decision granting Norma McCorvey’s, or rather “Jane Roe’s,” petition to strike down Texas’ abortion ban as unconstitutional. The ruling held that women have a fundamental right to choose whether or not to have abortions without excessive government restriction:
“State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”
Case Law Precedents
Roe stands as the landmark case in abortion rights, joined by Planned Parenthood v. Casey from 1992, which challenged a Pennsylvania law. The provisions at issue included requirements for a waiting period, spousal notice, and parental consent. Four Justices were willing to overturn Roe, including Clarence Thomas, the only one from that group still on the bench. The story goes that Justice Kennedy initially voted with these four to overturn Roe, then switched later to uphold it. The result was a plurality opinion – a plurality opinion is written when no majority of judges agree on the reasoning for a decision, only the result.
In the Casey ruling that did come down, eliminating the spousal notification, the Court established a new standard of review for abortion laws; the undue burden standard. Under it, abortion restrictions are unconstitutional if enacted for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” So, while it didn’t overturn Roe – because of what Casey did do – together, the two rulings are now the perch upon which the right to elective abortion rests.
We have very recent case law on how that standard has been applied: June Medical Services is a 2020 decision by the Court. It was 5-4 in favor of striking down another law from Texas, requiring doctors performing abortions to have admitting privileges at a state-authorized hospital within 30 miles of the abortion clinic. Justice Ginsburg was one of the five in the majority. If she is replaced with Barrett, the smart money bet is that the case would flip the opposite way.
Here’s another point to consider. Chief Justice Roberts ruled in June Medical that he agreed with the reasoning of the four dissenters but voted against them out of respect for precedent. That impetus, which is appropriate for any Justice, especially the Chief Justice, would be less important if the outcome would change the law anyway. So perhaps Roe might be dialed back by a stronger 6-3 decision, with Roberts joining a new conservative majority.
For that to happen, there would first need to be an abortion case that works its way up to the Supreme Court. For better or worse, we won’t have to wait too many terms for that to happen. From genuine controversies to laws specifically designed to fell Roe and its legacy, those challenges are on the way.
Read more from Scott D. Cosenza.