Are the Supreme Court and Biden ready to rumble over Roe?
Fifty years ago, the U.S. Supreme Court heard the first arguments in Roe v. Wade, a case that not only would transform constitutional law but political divisions in the United States. Since then, pro-life advocates have launched continuing challenges to try to dislodge the decision. Over the years, pro-choice groups at times exaggerated the risk of a serious threat to Roe and its progeny. Now, however, reality has caught up to the hyperbole. The court just accepted review in a Mississippi case that could deliver a crippling, or even lethal, blow to Roe.
But President Biden has a familiar back-up plan.
Dobbs vs. Jackson Women’s Health Organization would seem, on its face, to be an incremental — not existential — threat to Roe. The Mississippi legislature moved to ban abortions after 15 weeks, seven weeks earlier than past laws passing constitutional muster. However, Dobbs is the long-awaited “clean case” — one that has a straight, unimpeded shot at the key controlling abortion case of Planned Parenthood v. Casey, the case which effectively reframed Roe around the key criteria that the Constitution forbids bans on abortion before a fetus has achieved viability.
The court has long preferred off-ramps and nuanced decisions in abortion cases, a recognition of the political and social importance of Roe. Yet Dobbs is about as nuanced as a punch in the jaw. The case was accepted for one question only: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The court could have just as well asked: “Whether we can gut Casey and return key choices over reproductive rights to the states.”
The court’s acceptance of the case may reflect that it finally has a stable majority to reverse major aspects of Casey. This comes a year after the justices fractured over Louisiana’s limitations on abortion clinics; in that case, Chief Justice John Roberts supplied the key vote in concurring with the results. Roberts’ concurrence, however, was disquieting for many pro-choice advocates. He voted with the liberal justices only because Louisiana’s law was virtually identical to a Texas law upheld earlier by the court, and he felt the record left little flexibility. However, he went out of his way to criticize the precedent built on Casey and stressed that “no one asked the Court to reassess the Constitutional validity of the undue burden standard.”
The biggest change, though, is that Justice Ruth Bader Ginsburg was on the court then, and now Justice Amy Coney Barrett sits in place of the late Ginsburg. As a law professor, Barrett wrote extensively and passionately on what she saw as the deep flaws in Roe and in Casey. Her nomination was the single greatest deliverable ever made by a president to pro-life voters. In Barrett’s confirmation, Sen. Amy Klobuchar, D-Minn., pressed Barrett on whether she viewed Roe in the same way as Brown v. Board of Education, as a “super precedent.” Barrett responded that “Roe doesn’t fall into that category.” That led to a virtually audible gulp from pro-choice groups.
None of that bodes well for pro-choice advocates who strongly opposed acceptance of this case. The White House seems to be preparing for the worst-case scenario. In response to the acceptance of Dobbs, White House press secretary Jen Psaki said: “The president is committed to codifying Roe, regardless of the … outcome of this case.” In other words, Biden wants to make Roe controlling by federal legislative rather than constitutional authority.
It was a telling and ironic response. Roe was deemed a great victory because it removed abortion rights from legislative discretion by making it a constitutional imperative. Now, Biden is planning to snatch away any legislative discretion given back to the states by preempting state laws on abortion. Before Roe, abortion was viewed as a core state issue that left policies to the voters of each state. The Biden administration would effectively seize any legislative discretion and federalize abortion law.
It is a signature move for the Biden administration, which is becoming the most hostile to state’s rights in modern history. President Biden has shown little patience with states adopting opposing policies in a variety of areas.
For example, in the COVID-19 relief bill, states were given billions of federal dollars with a key, unprecedented catch: They had to promise not to cut taxes, even if the windfall of federal money left them with more money than they needed.
Biden seeks to negate another Supreme Court decision through legislation: In 2018, the court delivered a blow to unions when it ruled that government employees could decline to pay union dues — so Biden wants to preempt states’ right-to-work laws. While Congress has long passed major labor laws, the Pro-Act would effectively take away the ability of states to make choices in this area.
Then there is HR 1, a bill that would effectively federalize elections, including negating state identification law, redistricting rules and a host of other limitations.
In a widening array of areas, the Biden administration would achieve a national consensus by imposing a federal mandate on states. Some of the administration’s expansive claims already are being challenged and could ultimately reach a Supreme Court with a majority of pro-federalism justices. However, the effort to supplant states on abortion could prove the most difficult to sell to justices, if they use Dobbs to return some discretion back to the states.
There are obvious limits to the pro-choice values of the Biden administration: They clearly do not extend to state autonomy or authority. When it comes to the right to choose on key policies — from elections to unions to taxes to climate change to abortion — states would have fewer and fewer choices to make. They are left with the same freedom that automaker Henry Ford gave every customer: to choose any color of his Model T “so long as it is black.” In the next two years, many states are likely to object that they have been left with a type of Model T federalism in which they are free to choose any option — so long as it is Biden’s.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.