John Roberts and the Abortion Precedents

The chief justice has a chance to protect the Supreme Court, strike a blow for democracy, and overturn bad decisions.

By Edward Whelan

Wall Street Journal

Nov. 30, 2021 12:26 pm ET

The Supreme Court hears its most important abortion case in a generation on Wednesday. Dobbs v. Jackson Women’s Health Organization concerns a Mississippi law that bans most abortions after 15 weeks of gestation. That’s more permissive than the laws of nearly every country in Europe. But because it applies before viability, it conflicts with Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

Roe and Casey have corrupted America’s law and disrupted its politics for decades. Dobbs provides the court an opportunity to end the damage by restoring abortion policy to the democratic processes in the states. Many observers expect Chief Justice John Roberts —wary of overturning precedent and anxious to defend the court from political attacks—to search for a compromise. But his record provides compelling reasons to think he will forge a supermajority of justices to overturn Roe and Casey definitively.

In Roe, the justices imposed a uniform national policy on a contentious social issue. In Obergefell v. Hodges (2015), the court did the same thing, with the chief justice in dissent. “Just who do we think we are?” he asked plaintively. “The majority’s decision is an act of will, not legal judgment. The right it announces”—to same-sex marriage—“has no basis in the Constitution or this Court’s precedent.” The majority “seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.” The same was true of abortion in 1973.

What about stare decisis, the doctrine of adhering to precedent? Casey’s three-justice plurality let the “central holding” of Roe stand while reconstructing its legal basis. Stare decisis doesn’t allow the court to retain a precedent by “radically reconceptualizing” its reasoning and “jury-rigging new and different justifications to shore up the original mistake,” Chief Justice Roberts argued in Citizens United v. FEC (2010).

That concurring opinion, joined by Justice Samuel Alito, could have been written with Roe and Casey in mind. Far from being an “inexorable command, . . . especially in constitutional cases,” the chief justice wrote, stare decisis is a “principle of policy” that calls for the court to “balance the importance of having constitutional questions decided against the importance of having them decided right.” When a “precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases,” the justices “must be more willing to depart from that precedent.”

Because the chief justice is a proponent of judicial restraint—that is, of deference to the political branches—Dobbs provides a much easier case for overruling precedent than Citizens United did. The court’s ruling in Citizens United limited the scope of permissible legislation, whereas its overruling of Roe and Casey would end the court’s usurpation of the democratic processes on abortion.

Some observers have suggested that the chief justice might try to fashion a compromise, whereby the court would hold that Mississippi’s 15-week limit doesn’t violate Casey’s “undue burden” standards. That might appear to dodge the question whether to reaffirm Roe and Casey or overturn them.

But Roe and Casey don’t allow a middle ground in Dobbs. Under those precedents, a prohibition on abortion before the unborn child is “viable” outside the womb is per se an “undue burden.” There are disputes whether current technology puts viability at 24 weeks or as early as 20 weeks, but everyone acknowledges that Mississippi’s 15-week line is pre-viability.

Thus, a purported reconception of Casey that erased the viability line would overrule and supplant Roe and Casey. At the same time, it would keep the court in the business of regulating abortion by inviting a series of follow-up cases involving bans at, say, 12 weeks of gestation, eight weeks, detection of heartbeat (around six weeks) and conception.

More important, there is no sound basis for imposing this substitute for Casey. As the chief justice declared in Citizens United, the Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”

If the court follows that principle, it will face up to the necessity of choosing between two options. It could reaffirm its grave mistakes in Roe and Casey and strike down the Mississippi law. Or it could hold that there is no constitutional right to abortion and that abortion restrictions, like most other limitations on private conduct, are subject only to very deferential review by federal judges to determine whether they have a “rational basis”—a standard that Mississippi’s law easily satisfies.

Chief Justice Roberts’s proper concerns with the court’s institutional legitimacy should also drive him to overturn Roe and Casey. In Parents Involved v. Seattle, he observed: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Similarly, the way to stop Roe and Casey from doing further damage to the court is to overturn Roe and Casey.

To be sure, such a ruling would arouse intense controversy, especially among the media, entertainment and academic elites who are invested in the abortion license. But as in 1992, the failure to overturn Roe would also arouse intense controversy—and more deservedly so, as it would betray the faith that many citizens have placed in working peacefully over decades through the political process to change hearts and minds and laws—and to build a Supreme Court that respects the limits of its authority.

The immediate aftermath of the overruling of Roe might well be messy and contentious. But unless concerns over the court’s legitimacy are mere camouflage for the court’s self-aggrandizement, a sound institutionalism must also respect the legitimacy of the state legislatures that our Constitution leaves with primary authority over abortion policy.

Bereft of meritorious legal arguments, some supporters of Roe have tried to intimidate the justices by threatening to pack the court. Yielding to that threat would politicize the court beyond measure and invite endless bullying. And court-packing is deeply unpopular. The flagrant wrongness of Roe and Casey and the deep discomfort that many Democratic voters have with their party’s radical agenda on abortion make the overturning of Roe an improbable occasion for a blatant attack on the court to succeed. By winning this battle, Chief Justice Roberts would secure his legacy as a champion of the court’s independence from politics.

Mr. Whelan is a distinguished senior fellow at the Ethics and Public Policy Center and a co-editor of “The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.”