Supreme Court Could Change Abortion Rights Without the Alabama Law

WASHINGTON — Abortion rights are at risk at the Supreme Court, but the short-term threat may not come from extreme laws like the one passed by Alabama lawmakers on Tuesday.

The court led by Chief Justice John G. Roberts Jr. is more likely to chip away at the constitutional right to abortion established in 1973 in Roe v. Wade than to overturn it outright. It will have plenty of opportunities to do so.

As soon as Monday, the court could announce whether it will hear challenges to three different provisions of Indiana abortion laws. It will in the coming months almost certainly agree to hear a challenge to a Louisiana law that could reduce the number of abortion clinics in the state to one.

The Alabama law is a different kind of law, one that squarely conflicts with Roe. It would ban almost all abortions in the state, without exceptions for rape and incest, and subject abortion providers to harsh criminal penalties, but the Roberts court tends toward incrementalism, and is not likely to want to take on a direct confrontation with that precedent.

Nor in all likelihood will it have to.

Lower courts will almost certainly strike down the Alabama statute and other direct bans on abortion, like the ones that ban the procedure after doctors can detect what the measures call a “fetal heartbeat,” which happens at around six weeks of pregnancy. The lower courts will have little choice, as controlling Supreme Court precedents prohibit outright bans on abortion until the fetus is viable outside the womb, usually at about 24 weeks.

Since the Supreme Court controls its own docket, it can simply deny review after lower courts strike down laws squarely at odds with Roe.

To be sure, recent changes on the court have given opponents of abortion rights fresh hope for a wholesale reconsideration of Roe. Justice Anthony M. Kennedy, who retired last year, had been a cautious supporter of abortion rights and was an author of the key opinion in 1992 in Planned Parenthood v. Casey, which both reaffirmed and modified the core of Roe, announcing that states may not impose “undue burdens” on abortion rights.

Justice Kennedy has been replaced by Justice Brett M. Kavanaugh, whose limited record as an appeals court judge suggests that he will be more skeptical about the right to abortion. But Justice Kavanaugh has also exhibited some caution in his first months on the court, and he may not be eager for an immediate confrontation with the basic issue when intermediate steps are available.

But there are three members of the court — Justice Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — who seem less patient. It takes only four votes to add a case to the court’s docket, meaning that either Chief Justice Roberts or Justice Kavanaugh could force the court to confront the ultimate question of the fate of a constitutional right to abortion when a case concerning the Alabama law or a similar one reaches the court.

Melissa Murray, a law professor at New York University, said much will turn on Chief Justice Roberts, who may have conflicting impulses.

“Recent departures and appointments, coupled with an increasing skepticism of established precedents, suggests the Supreme Court is more amenable than ever to overruling Roe,” she said. “The recent spate of restrictive abortion regulations reflects this new reality.”

“These laws are an obvious provocation — a clear attempt to take the question of Roe’s continued viability straight to the court,” Professor Murray said. “The real question is whether Chief Justice Roberts’s interest in preserving the court’s institutional legitimacy will outweigh the conservative interest in legislating abortion out of existence.”

The court’s liberal justices certainly seem nervous. On Monday, in a case overruling a precedent in a different area of the law, Justice Stephen G. Breyer’s dissent chastised the majority for acting rashly. Repeatedly citing the Casey decision, Justice Breyer said he feared for the future.

“Today’s decision can only cause one to wonder which cases the court will overrule next,” he wrote.

Richard W. Garnett, a law professor at Notre Dame, said the constitutional confrontation over the right to abortion sought by the sponsors of the Alabama law was unlikely to come to pass.

“It appears that the proposal’s supporters intend to create an opportunity for the current court to revisit its decisions creating that right,” he said. “However, it is not clear that the current justices who have expressed doubts about the correctness of decisions like Roe and Casey will want to take up a case that squarely presents the question whether these decisions should be overruled. Instead, they might well prefer to first consider less sweeping abortion regulations and to uphold them even under the current doctrine.”

Source

more recommended stories

  • We Went to the Moon. Why Can’t We Solve Climate Change?

    [Read all Times reporting on the.

  • On Politics: Biden-Harris Rematch to Headline Second Debates

    Good Friday morning. Here are some.

  • How Trump’s Twitter Attack Against Democrats Evolved Into ‘Send Her Back’ Chant

    On Sunday, in what was widely.

  • Mortimer Caplin, Tactful but Tough Tax Collector, Dies at 103

    As I.R.S. commissioner in the Kennedy.

  • American to Lead NATO Intelligence as Iraq-War-Era Concerns About U.S. Linger

    NATO diplomats carefully balance the top.

  • House to Vote on Raising Federal Minimum Wage to $15

    “What we’re doing is working,” said.

  • 2020 Won’t Repeat the Mistakes of 2016, Whatever They Were

    WASHINGTON — Democrats still don’t agree.

  • On Politics: House Kills Impeachment Resolution

    • The National Republican Congressional Committee.

  • At North Carolina Rally, Trump Bets on Divisive Attacks as Way to Bolster Re-election Bid

    “Big Rally tonight in Greenville, North.

  • House Passes Intelligence Bill That Would Expand Secrecy Around Operatives

    WASHINGTON — The House passed a.

  • Trump and Epstein Partied and Commented on Women in 1992 Video

    WASHINGTON — President Trump has been.

  • 5 Ways John Paul Stevens Made a Mark on the Supreme Court

    WASHINGTON — Justice John Paul Stevens,.

  • With Name-Calling and Twitter Battles, House Republican Campaign Arm Copies Trump’s Playbook

    “I hope the lesson the N.R.C.C..

  • Top Myanmar Generals Are Barred From Entering U.S. Over Rohingya Killings

    BANGKOK — The United States has.

  • Iran Rejects Pompeo’s Suggestion It Is Willing to Negotiate Over Missile Program

    WASHINGTON — Secretary of State Mike.

  • Trump’s New Top Labor Official Is Expected to Advance an Anti-Labor Agenda

    Congressional Republicans, members of their staffs.

  • Roger Stone Is Barred From Social Media After Posts Attacking Russia Inquiry

    WASHINGTON — A federal judge on.

  • North Korea Warns U.S. to Quit Military Drills With South Korea

    SEOUL, South Korea — North Korea.

  • The Painful Roots of Trump’s ‘Go Back’ Comment

    It was there in 1882, when.

  • Democratic Fund-Raising: In a Packed Field, Five Candidates Stand Out

    Contributions From Individual Donors The bigger.

  • Pence’s Border Trip Illustrates Conflicting Messages About Detained Migrants

    Although many people were appalled by.

  • Trump Sends Negotiators to Geneva for Nuclear Talks With Russians and Also Seeks to Limit Chinese Warheads

    WASHINGTON — President Trump is sending.

  • E.P.A. Broke Rules in Shake-Up of Science Panels, Federal Watchdog Says

    Want climate news in your inbox?.

  • Joe Biden’s Health Care Plan Focuses on Shoring Up the Affordable Care Act

    After remaining vague for months about.

  • Huge Turnout Is Expected in 2020. So Which Party Would Benefit?

    The opportunity for Democrats, however small,.

  • On Politics: Trump Tells Congresswomen to ‘Go Back’ to Their Countries

    Good Monday morning. Here are some.

  • The Power Went Out. Where Was de Blasio?

    He was in rural Iowa, illustrating.

  • When Big Tobacco Invoked Eric Garner to Fight a Menthol Cigarette Ban

    In an interview in the sanctuary.

  • Trump Backs Away From Barriers on Foreign Uranium

    WASHINGTON — President Trump said he.

  • Joe Biden Decides He Doesn’t Need to Stay Above the Fray After All

    ATKINSON, N.H. — Joseph R. Biden.

  • Pence Tours Border Facilities – Video

    Channels & Shows Home Search U.S..

  • Man Attacking ICE Detention Center Is Fatally Shot by the Police

    The police fatally shot a man.