Scott Lemieux | Vox

5 takeaways from the Supreme Court’s just-ended term

2019-07-01T14:23:47-04:00

People gather in front of the US Supreme Court as decisions are handed down on June 27, 2019, in Washington, DC. | Mark Wilson/Getty Images

The recently completed Supreme Court term was a tentative and transitional one. In part because Brett Kavanaugh’s bruising confirmation fight was not concluded until after the term was underway, the Court failed to tackle or fully resolve many of the critical issues it can be expected to face in the coming years.

The Court provided some clues about what’s on its mind, but much remains in the air. We still don’t know how it will deal with Roe v. Wade, or whether and how it will aggressively revive pre-New Deal doctrines that limit the ability of the federal government to regulate business. Answers to those questions will likely arrive as soon as the next Supreme Court term.

It’s clear that replacing Anthony Kennedy with Kavanaugh will move the Court to the right — the only question is how far to the right and how fast. For most of his tenure on the Court, Kennedy was a genuine swing vote, providing a critical fifth vote for the more liberal justices on issues like reproductive freedom, same-sex marriage, and the death penalty.

Kavanaugh will not be doing that. And while this term mostly lacked cases on such high-profile issues, this will likely become more evident next term, Kavanaugh’s first full one since his confirmation last fall.

Here are five takeaways from the latest term of the Supreme Court.

1) Brett Kavanaugh is very conservative

Maybe this wasn’t a surprise, but it’s noteworthy all the same. In his first term, President Trump’s newest appointee voted most often with Chief Justice Roberts (94 percent) and the Court’s most orthodox party-line conservative, Samuel Alito (91 percent). He appears less radical and idiosyncratic than Trump’s first nominee, Neil Gorsuch (who votes most often with his fellow idiosyncratic radical Clarence Thomas).

But that cuts both ways: Gorsuch is more likely to take far-out conservative positions but is also more likely to join the more liberal justices on a swing vote in cases that don’t represent core issues for legal conservatives. Gorsuch is far from a consistent civil libertarian, but he did provide a crucial fifth vote in criminal justice cases, ruling that a sentencing enhancement provision was unconstitutionally vague and upholding the right to a jury trial.

To put it another way, a Court with Gorsuch as the median vote would be further to the right than if Kavanuagh was in the middle — but with Chief Justice Roberts as the median vote, Gorsuch will lead to more liberal results than Kavanaugh will, because Gorsuch’s eccentric views are more likely to be in alignment with liberals on particular issues even if they’re more reactionary on balance.

Kavanaugh’s nomination gives every appearance, in other words, of being a home run for Republicans.

2) The chief justice wants to go slowly on abortion

In February, the chief justice joined with the Court’s four Democratic nominees to stop from going into effect a Louisiana abortion law that would have left only one abortion clinic open in the entire state. The law was extremely similar to the Texas law the Court struck down in the 2016 case Whole Woman’s Health v. Hellerstedt, so the decision by the Fifth Circuit to let the law stand reflected a prediction on its part that the Court was about to give much wider latitude to states to regulate abortion.

To be clear, Roberts voting for a temporary stay to prevent the law from going into effect does not mean that he will ultimately vote to strike down the Louisiana law when it comes back in front of the Court. He dissented in Whole Woman’s Health, and it is extremely unlikely that he’s changed his mind since.

Rather, his joining the liberals most likely reflects two factors: 1) he did not want the Fifth Circuit essentially nullifying a recent Supreme Court precedent; and 2) he did not want the Supreme Court to signal a major shift on abortion rights so soon after Kavanaugh’s confirmation.

The medium-term prognosis for abortion rights remains very bleak, but Roberts is apparently not in any hurry to make waves on the issue most strongly associated with the Supreme Court politically.

3) The Court is about to go to war on the regulatory state

One of the most important Supreme Court cases of the term had little immediate impact. In Gundy v. United States, the Court in an opinion by Obama nominee Elena Kagan ruled as constitutional a Justice Department rule that Congress had authorized it to create requiring some sex offenders to register as such after a designated date.

What made the case potentially important was that three justices — including Chief Justice Roberts — dissented, arguing that the rule should have been struck down as an unconstitutional delegation by Congress to the executive branch. Justice Kavanaugh, however, did not participate in the case (which was argued before he joined the Court), and Justice Alito filed a concurrence indicating that he would “support [the] effort” if “a majority of this Court were willing to reconsider the approach we have taken for the past 84 years.”

All in all, it added up to an ominous sign that an assault on the regulatory state may be in the offing.

Alito was referring to two 1935 cases, Panama Refining v. Ryan and Schechter Poultry v. US, that ruled that Congress had unconstitutionally delegated powers to the executive branch, putting the executive in the position of illegally usurping Congress’s legislative powers rather than just enforcing the law.

As Alito correctly noted, those cases have been observed in the breach since then, and for very good reason. Legislative delegation — often involving less specific policy choices than the one under review in Gundy — is such a ubiquitous part of the regulatory state established by the New Deal that reviving non-delegation doctrine would wreak havoc on critical government agencies like the Environmental Protection Agency. Statutes like the Clean Air Act set broad goals and rely on the expertise of executive agencies to determine the details. Reviving non-delegation doctrine would put many of these regulations at risk of being voided by the courts.

While the idea of the Court forcing elected officials to make clearer choices might sound superficially attractive, in practice, non-delegation doctrine represents unsophisticated assumptions about how the legislative process functions, and judicial intervention is enormously unlikely to generate a coherent rule or produce a better process. But the libertarian push for the revival of non-delegation isn’t so much to improve the legislative process as to hamstring the executive branch, and the Roberts Court now seems poised to advance that goal.

4) The 2020 census may or may not include a citizenship question

On the last day of the term, the Court issued a very fractured ruling in Department of Commerce v. New York. The case concerned the attempts by the Trump administration to add a question about citizenship to the 2020 census — which critics say is a political move designed to marginalize people of color by giving them less federal representation.

After oral argument, it seemed highly likely that the Trump administration would prevail, despite multiple lower courts having held the addition of the question illegal. However, the Court did not allow the question to go forward as of now. The Court’s four Democratic nominees sided with the lower courts that the addition of the question was arbitrary and capricious (and hence illegal under the Administrative Procedures Act), while four of the Republican nominees would have allowed the question to go forward immediately.

Roberts sided with the Trump administration on most of the questions but held that the reason offered for the change by Commerce Secretary Wilbur Ross — that the Trump administration added the question to better enforce the Voting Rights Act — was clearly a pretext. (Given that the Trump administration has literally never sued to enforce the VRA, this shouldn’t have been hard to determine.) “Accepting contrived reasons,” Roberts argued, “would defeat the purpose of the enterprise.” So the Court sent the issue back to the lower courts and invited the Commerce Department to offer a more plausible justification.

Given that the evidence indicates that asking about citizenship will cause racial minorities to fill out the census at lower rates, reducing their federal representation and share of federal funds, whether the question ends up on the census is not a trivial matter. But it remains unclear whether it will. Particularly in light of the recently revealed smoking gun evidence that the question was designed precisely to underrepresent minorities, the lower courts might issue a ruling against the question that will hold up. But it’s perhaps more likely that the Commerce Department will come up with another pretext that Roberts will accept.

5) American elections are about to get even less fair

Another last-day ruling by the Court was less ambiguous. In Rucho v. Common Cause, the Court ruled that even the most egregious partisan gerrymandering was a “political question” beyond the reach of the federal courts. In this case, the Court’s signal was clear: No matter how much partisan gerrymanders disenfranchise voters, the Court will not interfere.

While the Court’s position is clear, however, how states will respond is not. As Eric Levitz of New York magazine points out, large blue states will have to decide whether to engage in nonpartisan districting as a model or whether they will try to engage in the most aggressive pro-Democratic gerrymanders computer technology makes possible. One perverse upshot of Rucho is that the more unfair a state’s elections, the more representation they receive at the national level, making an eventual race to the bottom likely.

The result will ultimately make democracy worse while being a net plus for Republicans. Which is also a fair summary of the impact of the Roberts Court — an impact that is only likely to deepen in the coming years.

Scott Lemieux is a lecturer in political science at the University of Washington, specializing in constitutional law, the Supreme Court, and American political institutions and development. He is, with David Watkins, the co-author of Judicial Review and Contemporary Democratic Theory: Power, Domination and the Courts. He blogs at Lawyers, Guns & Money.

Yes, Roe really is in trouble

2019-05-16T17:18:00-04:00

An anti-abortion activist tries to block the signs of abortion rights activists in front of the the US Supreme Court during the 2018 March for Life on January 19, 2018, in Washington, DC. | Alex Wong/Getty Images

It’s been a bad few weeks for supporters of reproductive freedom.

On Tuesday, the Alabama legislature passed one of the most restrictive abortion bills in the country, banning the procedure with no exception for rape or incest. Last week, Georgia passed a so-called “heartbeat” bill that would prohibit an abortion once a fetal heartbeat can be picked up — the fourth such bill to be passed in 2019.

These laws will surely be challenged and make their way to the Supreme Court. Once there, reproductive rights advocates worry that the newly empowered conservative majority, entrenched by President Trump in the wake of Justice Anthony Kennedy’s retirement, will use the opportunity to finally strike down Roe v. Wade.

But not everyone thinks that’s necessarily what lies ahead. The thinking goes that these bills are so extreme that they seem almost designed to be struck down by the high court — and that is of a piece with how the Republican establishment views abortion, which it basically sees as more effective at ginning up the base when it remains a live issue.

The Niskanen Institute’s Will Wilkinson, a generally astute writer, said of the Georgia bill, “it seems pretty clear to me [the authors the bill] want it to be overturned.” And why would Republicans want that? “They want to keep their base mad and run on it forever, but never catch the car.” Following Kennedy’s retirement in 2018, Slate’s William Saletan explained “Why Republicans don’t actually want to repeal Roe.” Kathleen Parker of the Washington Post, immediately before Trump’s nomination of Brett Kavanaugh, asserted that no Court majority would want to overrule Roe and “be credited with upending settled law and causing massive societal upheaval.”

It’s not an outlandish claim. After all, five Republican nominees were part of the original Roe majority, and the decision has now survived more than two decades with a Supreme Court median vote nominated by anti-abortion presidents. It seems plausible that Republican elites would rather have Roe on the books to rally the rank and file than pay the political price of overruling it.

But this argument fails to withstand serious historical scrutiny. The survival of Roe was not the inevitable product of some master Republican plan, but a contingent series of flukes and historical accidents. And just this week, the Court’s conservative majority showed its willingness to overturn decades-old precedent. Roe still being law in 2019 represents remarkable good luck for supporters of reproductive freedom. With Republicans capturing the Senate in 2014 and winning the presidency in 2016, and Trump replacing Kennedy in 2018, this luck has almost certainly run out.

The path to today’s abortion politics

The idea that the Republican Party doesn’t really want to repeal Roe v. Wade — that the landmark abortion case is more useful to it as a mobilizing issue — rests on Supreme Court decisions that were the product less of political scheming and more of happenstance and luck.

Roe was in serious jeopardy as early as the late ’80s, as the Reagan administration took the position that Roe should be overruled and states passed envelope-pushing statutes to generate test cases. In 1989, the Court issued a ruling in Webster v. Reproductive Health Services, which considered a Missouri law that defined life as beginning at conception and declared that “unborn children have protectable interests in life, health, and well-being.”

But Roe survived the first major attempt to dismantle it. Chief Justice William Rehnquist (who dissented in Roe) tried to assemble a coalition for effectively ending Roe but fell one vote short. The result was an opinion that expressed hostility to Roe without changing the legal status quo.

The roadblock was Justice Sandra Day O’Connor, who in a concurrence insisted that the Missouri statute did not require the Court to consider whether Roe was correctly decided because the “fetal personhood” language did not have concrete legal meaning.

Roe survived, but the threat was clear. “For today, the women of this nation still retain the liberty to control their destinies,” Justice Harry Blackmun, Roe’s author, famously wrote in his dissent. “But the signs are evident and very ominous, and a chill wind blows.”

By 1991, the Court’s two liberal lions, William Brennan and Thurgood Marshall, were gone, replaced by nominees of President George H.W. Bush. Combined with the four apparent anti-Roe votes in Webster, this seemed to make overturning Roe a question of “when,” not “if.”

The apparent vehicle was the 1992 case Planned Parenthood v. Casey. The case involved a Pennsylvania statute that imposed several restrictions on abortion that the Court’s previous applications of Roe had deemed unconstitutional. The American Civil Liberties Union’s Kathryn Kolbert, who argued the challenge to the Pennsylvania’s statute in front of the Court, essentially assumed that Roe was doomed and largely dedicated her argument to urging the Court to directly face the question of whether Roe was still good law, rather than continuing to dodge the question as it had in Webster.

But the expected ruling didn’t happen. After initially voting in conference to overrule Roe, Justice Anthony Kennedy ended up collaborating with fellow Republican nominees Sandra Day O’Connor and David Souter to craft a compromise upholding Roe.

The essential holding of Roe — that the 14th Amendment protects the right to choose to have an abortion prior to fetal viability — was explicitly reaffirmed. But Roe’s “trimester framework,” which forbade virtually any regulation of first-trimester abortions, would be replaced with the “undue burden” test O’Connor had long advocated.

Under the undue burden test, which basically held that a law could not place an undue burden on someone seeking an abortion, the Court struck down Pennsylvania’s requirement that a married woman inform her husband before obtaining an abortion. But it upheld the statute’s other regulations, including a mandatory 24-hour waiting period and a requirement that minors obtain the consent of at least one parent.

Casey provided substantially less protection for reproductive freedom than Roe but was still greatly preferable to overruling it altogether. It is this Casey compromise, crafted by the moderate appointees of Republican presidents, on which the idea that the GOP doesn’t really want to repeal Roe largely rests.

The center-right compromise on Roe

Was this what Republican elites wanted all along? There is not, in fact, any reason to believe so. If one looks at the circumstances that brought each of the Casey three to the Court, it’s clear that Casey wasn’t the product of clever scheming by Republicans.

O’Connor was Ronald Reagan’s first Supreme Court nominee because Reagan had promised to nominate the first female Supreme Court justice. While O’Connor had displayed some moderation on abortion as a state legislator in Arizona, she was the most conservative woman who was considered a viable nominee. She wasn’t chosen because of her relative moderation on abortion. (Indeed, had Gerald Ford nominated a woman instead of John Paul Stevens in 1975, it is highly likely that Reagan would have chosen an anti-Roe conservative as his first nominee.)

Kennedy was confirmed to the Court only because a Democratic Senate rejected Reagan’s first choice, Robert Bork, an icon in conservative legal circles whom Republican elites certainly wanted to be confirmed. Bork, who labeled Roe an “unconstitutional decision” in congressional testimony in 1981, unquestionably would have voted to overrule it. Had Reagan nominated another orthodox conservative without Bork’s extensive history of inflammatory public comments in 1987, it is overwhelmingly likely Roe would have been dead in 1990. (His next pick after Bork dropped out, Douglas Ginsburg, was also forced to withdraw amid controversy over his personal conduct, including his admission that he had smoked marijuana several times.)

As for Souter — long the bane of conservatives for being a moderate who got on the Court under a Republican — he was hardly the product of a conscious plan to preserve Roe. As Jan Crawford reported in her book about the Roberts Court, the Souter choice emerged out of odd intra-administration conflicts; most notably, some conservatives in the Department of Justice torpedoed the potential nomination of orthodox conservative Ken Starr because he disagreed with them on an obscure federalism issue. Bush then went to Souter in large measure because two New Hampshirites in his inner circle — Chief of Staff John Sununu and Sen. Warren Rudman — assured him that Souter was a reliable, solid conservative. They were wrong, but Bush certainly wasn’t trying to select a liberal.

It’s worth noting that if Bush had had a secret plan to preserve Roe, he likely would not have nominated Clarence Thomas in 1991, a staunch conservative widely and correctly perceived to be anti-Roe. It’s also worth noting that in 1991, there was nothing in the record of Anthony Kennedy — who joined Rehnquist’s opinion in Webster, not O’Connor’s more moderate concurrence — to suggest he supported upholding Roe. That means that irrespective of Souter’s position on the question, Kennedy voting against Roe, as his Webster vote suggested, would have made Thomas the fifth and decisive vote.

Now, it’s fair to say that during this period, Republican presidents were not single-minded about Roe. But in the years since, abortion has become nothing less than a litmus test. The rise of the Federalist Society, which was founded in 1982 and became steadily more influential over time, was in large measure to ensure that another accident like Souter didn’t happen.

The fact remains, however, that none of the post-1980 Republican justices were selected for the purpose of preserving Roe. And had Reagan simply gotten his first choice in 1987, Roe would have been dead.

The fate of Roe

Since 1992, Casey has been the controlling precedent on abortion. Especially after O’Connor left the Court in 2006, the case has allowed states more and more leeway to regulate abortion, although in 2016, a Texas law that would have caused more than half of Texas’s abortion clinics to close finally went too far for Kennedy.

With Kennedy no longer on the Court, the situation for reproductive rights is about to get worse; the only question is how much worse.

It is true that ending Roe would be unpopular, which is an argument pundits like Saletan and Parker have made about why Republicans won’t let the law fall in the end. But it would be odd indeed to use this fact to conclude that therefore Republican elites don’t want it to happen. Republican efforts to repeal the Affordable Care Act and enact Trump’s tax cuts were enormously unpopular, but they did the latter and were one vote away from the former anyway.

To see what Republicans really think about abortion, just look at the two-track strategy of doing as much as possible to limit access to abortion under existing law while teeing up vehicles to get Roe overruled. Ohio is an example of a state that has pursued both approaches. In addition to the “fetal heartbeat” bill that directly challenges Roe, it has also targeted abortion clinics with onerous legal restrictions, with the result that the number of abortion clinics in the state has been reduced from 45 in 1992 to 10 today.

In addition, the idea that Roe being overturned will mean that evangelicals will no longer have the issue to rally around is puzzling. If Roe is overruled, the result would be conflicts over abortion laws in most states as well as Congress. And preserving the movement’s legislative victories would still require maintaining control of the Supreme Court.

The only hope for Roe, then, lies with Chief Justice Roberts, now the Court’s median vote on the issue. Could Roberts, who disappointed conservatives by casting the deciding vote to uphold most of the Affordable Care Act, cross them again by saving Roe?

This is highly unlikely. NFIB v. Sebelius, the vote that saved Obamacare, was a rare exception in Roberts’s track record, and even in that case, he inflicted significant damage on the statute’s expansion of Medicaid. From eviscerating the Voting Rights Act to gutting campaign finance law, Roberts has generally sided with longstanding movement conservative priorities even when the results are unpopular. On abortion, he voted with the minority in the 2016 case to uphold the Texas anti-abortion law, which, if left in place, would in itself effectively render Roe a nullity by allowing states to stop abortion clinics from operating.

It is true that Roberts has often tried to slowly dismantle precedents he dislikes rather than overruling them immediately. The Court may well take the judicial obfuscation route in dismantling Roe, starting with cases that give states more leeway to restrict abortions instead of explicitly announcing that it is overruling Roe immediately, giving conservative policy victories without the political costs. The Court is likely to try to put off consideration of the laws (like Georgia’s and Alabama’s) that most directly threaten Roe until after the 2020 elections.

But the willingness to overturn decades-old precedent is there. Just this week, the Court’s conservative majority ruled, in Franchise Tax Board of California v. Hyatt, to throw stare decisis out the window and overrule a 1979 decision on whether a state could be sued in another state’s courts — not because the decision had proven unworkable or any relevant facts had changed but because a bare majority of the Court would have ruled differently had they heard the case in the first instance.

The decision had nothing to do with abortion — and everything to do with it. In a dissenting opinion, Justice Stephen Breyer sent up a warning flare: “Today’s decision can only cause one to wonder which cases the court will overrule next.”

However the Court describes what it’s doing to Roe, in short order, states will have the tools necessary to make abortion almost or entirely inaccessible for tens of millions of Americans. Eventually, the Court will have to face Roe head on, and it’s overwhelmingly likely that it will overrule Roe if Roberts is the median vote — and a near certainty if a Republican president can replace Justice Ruth Bader Ginsburg or Stephen Breyer.

6 myths about Roe v. Wade, debunked

2018-08-14T13:50:09-04:00

Supreme Court Justice Harry Blackmun, author of Roe v. Wade, announces his retirement in April 1994 in Washington, DC. | Cynthia Johnson/Liaison/Getty Images

President Donald Trump has nominated Brett Kavanaugh to the Supreme Court, which puts Roe v. Wade in serious peril. Proponents of criminalizing abortion are, and should be, pleased with this development.

But some people claiming to be in favor of abortion rights have argued that they’re also okay with Roe being overruled — on the grounds that the decision was poorly reasoned and it choked off democratic debate prematurely.

“Let Roe go,” urged Megan McArdle of the Washington Post last week, even as she explained she believed as a general principle that women ought to be free to choose abortion. This might seem like idiosyncratic contrarianism. But for many years pro-choice/anti-Roe punditry has become a genre unto itself, with columnist after columnist asserting that overruling Roe wouldn’t be that big of a deal.

Benjamin Wittes, for example, predicted in the Atlantic, in 2005, that “in the absence of Roe abortion rights would probably be protected by the laws of most states relatively quickly.” And in the same magazine Jeffrey Rosen agreed the next year, “Access to abortion wouldn’t necessarily become less widely available than it is now.”

But sometimes an argument is counterintuitive because it’s wrong, and that’s the case here. Still, it’s an argument worthy of attention. McArdle’s column serves as a useful target for analysis because it brings together in one place a lot of common fallacies about Roe, ones that will definitely be used in the coming months by opponents of legal abortion in order to minimize the effects of overruling a decision that roughly 70 percent of the public believes should be upheld. Let’s look at some of these myths in detail.

It’s not true that Roe isn’t rooted in well-established constitutional principles

Roe is “a poorly reasoned mess,” asserted McArdle, adding that “it’s all ‘emanations and penumbras’ and similarly float-y language.” This line of argument has been echoed by other nominally pro-choice and anti-Roe pundits. “Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion,” according to Wittes.

Opponents of Roe writing for general audiences routinely invoke the “penumbras” phrase, from Justice William O. Douglas’s opinion striking down a ban on the use or distribution of contraception in Griswold v. Connecticut, as if doing so self-evidently renders the opinion absurd. Douglas had used that phrase to defend the idea that the Constitution includes an implicit right to privacy, in at least some matters of marriage and family, and the Roe majority cited it to extend that idea to the realm of abortion.

But Justice Douglas’s observation that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” describes a perfectly banal concept: The enumeration of rights, individually or collectively, implies the existence of other rights. As Douglas himself pointed out, in Griswold, the Supreme Court has enforced a “right of association” although that phrase is not found in the Constitution, because guarantees of the right to free speech and to petition the government would mean little without the right to form political associations.

Earlier this term, the Supreme Court struck down the Professional and Amateur Sports Protection Act, which prevented most states from making their own rules about sports gambling, based on the doctrine of “anticommandeering.” That means the the US could not conscript state officials to enforce its own regulatory schemes. Now, the concept of “anticommandeering” is not found explicitly in the Constitution, but according to the Rehnquist Court it is implicit in the general federalist structure of the Constitution. In short, mocking the phrase “emanations and penumbras” isn’t much of an argument.

But it’s even more problematic when applied to Roe because the holding in that case does not rely on Douglas’s argument that the right to privacy is implicit in the “specific guarantees in the Bill of Rights” (that is, the penumbras). The right to privacy, according to Justice Harry Blackmun’s opinion for the Court in Roe, should be located in “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” This doctrine, generally called “substantive due process,” is that some rights are so fundamental that abrogating them is by definition a violation of the “due process of law.”

New Dealers like Douglas distrusted the doctrine because it had been used by pre-New Deal Courts to strike down economic regulations, seemingly because that’s what the justices preferred politically. But the moderate Republicans who controlled the Court in 1973 were more comfortable with the concept.

Rooting the right to privacy in the 14th Amendment is particularly significant. Justice Douglas is one of the most liberal justices in the history of the Court — an easy target for Roe’s critics. But Blackmun was largely drawing on a theory (privacy is rooted in substantive due process) laid out in a concurrence by Justice John Marshall Harlan, in Griswold. Harlan was the Warren Court’s house conservative; the fact that he and Douglas agreed that a right to privacy exists, if for different reasons, suggests a belief in such a right need not be narrowly partisan. (And it’s worth remembering that Blackmun, the author of the Roe opinion, was a Nixon appointee, and he was joined by two of the three other Nixon appointees.

While the opinions in Griswold may seem a little thin, that’s partly because both Douglas and Harlan had stated their views in much more detail four years earlier in their dissents in Poe v. Ullman. In that case, a majority of the court refused to hear a challenge to the Connecticut law it later struck down in Griswold, and Douglas and Harlan explained both why the Court should have taken the case — which prevented any birth control clinics from operating in the state — and should have ruled the law unconstitutional. Both dissents in Poe are worth reading and provide further evidence that the right to privacy has deep roots in the American constitutional tradition. And if Griswold is right, Roe is at least plausible.

As Justice John Paul Stevens put it in a 1986 case, “There may, of course, be a significant difference in the strength of the countervailing state interest, but I fail to see how a decision on childbearing becomes less important the day after conception than the day before.”

To be clear, as is true for virtually all constitutional questions of any interest, reasonable people can disagree with the outcome of Roe. One can argue that there are no privacy protections implicit in the Constitution, and that a statute making the use of contraceptives illegal and empowering police to search bedrooms for evidence of them raises no constitutional problems. Or one can argue that the privacy doctrine is sound but not applicable to Roe because fetal life presents a unique problem.

But Roe hardly invented the idea that the Constitution created a zone of privacy for families where the state may not intrude; in that sense, at least, it is well grounded in established doctrine.

Roe does not forbid virtually all state regulation of abortion

According to the anti-abortion National Review editor Rich Lowry, Roe “has made it all but impossible to regulate abortion, except in the narrowest circumstances.” This echoes a theme of the pro-choice, anti-Roe pundits: Wittes claimed that the Court had “removed the abortion question from the legislative realm.”

But this is simply false. It’s true that Roe itself forbade most regulation of abortion prior to fetal viability, which it defined as occurring after the second “trimester.” But as modified by the Supreme Court in the 1992 case Planned Parenthood v. Casey — which discarded the trimester framework — states can regulate pre-viability abortions as long as they do not constitute an “undue burden” on a woman’s right to choose.

And the Supreme Court has applied that test very loosely. Even as states have passed more and more restrictions on abortion — including Targeted Regulation of Abortion Providers (TRAP) laws that have forced perfectly safe abortion clinics to close – the Court struck down only one regulation under Casey from 1992 to 2016, and that decision was quickly overruled when George W. Bush’s nominees joined the Court. (The Court upheld a federal ban on “partial-birth abortion” after striking down a nearly identical state statute less than a decade earlier.)

The Court finally struck down a particularly extreme Texas statute in 2016, one that required abortion clinics to have facilities similar to those in clinics that performed a much wider range of procedure, and also required doctors to have admitting privileges in a nearby hospital. These requirements would have required a majority of the state’s clinics to close. This decision has become effectively a dead letter with Kennedy’s retirement. But in any case, states have many regulatory tools at their disposal to discourage women from getting abortions. These regulations have been distressingly effective at making abortion inaccessible for many women, particularly those in rural areas.

But abortion is much more tightly regulated in France!

According to McArdle, the US has “one of the world’s most permissive abortion laws.” This point, related to the previous one, uses the somewhat more stringent term limits in most European countries as a “gotcha” against liberals. “France, like many European countries, takes a stricter line on abortion than does the United States,” wrote Kevin Williamson, of National Review (and, ever so briefly, the Atlantic).

Ross Douthat has similarly argued that the French system, which permits abortion for any reason within 12 weeks of conception, afterward requiring certification by two doctors that the continuation of a pregnancy would be threatening to a woman’s life or health, represents a plausible “middle ground” in the American abortion debate.

The comparison is misleading at best because it abstracts a single regulatory aspect from a complex health care system and applies it to a radically different political and geographic context. Making abortion law comparable in the US and France would require not merely changing the term limit but repealing the Hyde Amendment — which bans Medicaid funds from being used for abortions. (In France, in contrast, the state pays 80 percent to 100 percent of the cost of an abortion.) It would also mean subsidizing a bunch of rural public health clinics that offer women a full array of reproductive services, including abortion, and a repeal of most of the state laws that restrict the termination of a pregnancy.

Needless to say, this isn’t the deal American anti-abortion activists are offering. In fact, many American women would have much greater access to abortion if they lived under the French framework.

Roe’s protections aren’t primarily about the gestation point beyond which the state may forbid abortion

The two points above have emanations that form a penumbra that casts a shadow over the scope of the abortion debate in the United States. The arguments made by McArdle, Williamson, Lowry, and Douthat all imply that the primary subject of debate ought to be the point of the pregnancy at which abortion is banned outright.

The argument that second trimester, pre-viability abortions should be banned is not, in my view, persuasive. But more to the point, focusing on bans based on the age of the fetus obscures the obvious fact that the vast majority of abortion regulations — with mandatory waiting periods, parental involvement and informed consent requirements, TRAP laws — apply at every stage of the pregnancy. (More than 90 percent of abortions occur in the first trimester, yet the restrictions apply to them as well.)

Opponents of Roe prefer to focus on second- and third-trimester abortions, the latter of which are vanishingly rare. According to the Centers for Disease Control and Prevention, only 1.3 percent of abortions occur after the 21st week.

If the goal of the anti-abortion movement is to stop second-term-or-later abortions, why do anti-abortion groups and their legislative allies also favor establishing a bewildering obstacle course of arbitrary regulations that affect abortions from the moment of conception onward.

The focus on term limits is a diversionary tactic intended to conceal a pincer movement carefully designed to strangle a woman’s right to choose. On the one hand, the number of weeks a woman has to obtain an abortion gets smaller and smaller; on the other hand, the hurdles for women seeking an abortion in a timely matter grow higher and higher.

This is particularly important because permitting onerous regulations targeted at abortion clinics is one way the Supreme Court can empower states to make abortion inaccessible without immediately and explicitly overruling Roe.

Overruling Roe is no big deal because public opinion will protect abortion

Another staple of the pro-choice, anti-Roe argument is that, because abortion rights are generally popular, the protection of the Supreme Court isn’t really necessary. Wittes asserted that “the Supreme Court has prevented abortion-rights supporters from winning a debate in which public opinion favors them.” Rosen recently and tellingly argued that the transformations if Roe is overruled or gutted “may be less dramatic, in practice, than liberals fear” because “the main effect would be restricting the access of poor women who have little access today.”

It is very odd indeed to argue that overruling Roe is no big deal because its greatest effects would be on the most vulnerable populations. (It’s true that, because of Casey, the access of many poor women to abortion has been greatly reduced. But from a pro-abortion rights perspective the obvious answer is to move toward the more robust protections of the original Roe rather than making abortion even less accessible.)

But the inequitable impact of overruling Roe is important politically as well. The women who pay the biggest price for abortion criminalization and most regulations are the least politically powerful.

Even when abortion is banned by a state, affluent women generally have access to safe abortions, either through the “gray market” of doctors who quietly perform them or by their ability to travel to other jurisdictions. As a result, many affluent pro-abortion rights Republican voters can keep voting Republican knowing that more restrictive abortion laws will not affect them or people similarly situated. After all, before Roe the vast majority of states kept abortion bans on the books even as national majorities become supportive of abortion rights.

Elections are not referendums; supporting a particular unpopular position doesn’t necessarily spell electoral doom for a party. And that’s doubly true when the population affected most by a law has little political power. This is exactly a case where judicial protection of a threatened right is both appropriate and in many cases necessary.

Overturning Roe won’t return the issue to the states

Trump said in an interview after Kennedy’s resignation that abortion “could very well end up with the states at some point.” Many pundits — including McArdle — have accepted the framing.

But the assumption that overruling Roe would send the issue back to the states is clearly false. As previously discussed, Congress has passed, and the Supreme Court has upheld, a nationwide ban of what anti-abortion groups have labeled “partial-birth abortions.” To find the last time the House of Representatives passed an abortion regulation, you would have to go all the way back to … this January, when it passed a bill that would require doctors to provide medical care for a fetus born alive during an abortion procedure.

And last year, the House passed a bill that would ban abortions after 20 weeks in every state in the union. So far, these bills have died in the Senate. But since the Republican Party is becoming more and more hostile to abortion rights, abortion would remain a national issue. Should the filibuster be eliminated or substantially watered down, a Republican government with slightly larger Senate majorities than it has now would be able to pass national abortion regulations.

If you support the criminalization of abortion, or believe that safe abortions should be available to affluent women but not to poor and rural women, you should be happy about the near certainty that Roe will be overruled or eviscerated. But whatever the nation’s contrarian pundits might tell you, if you support the reproductive rights of women, you should be appalled.

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