Below is my column in The Hill Supreme Court newspaper taking on a major new abortion challenge with Dobbs v Jackson Women’s Health Organization. After years of exaggerated reporting on the threat posed by past cases, this could be “the big one” for pro-life advocates who want to significantly curtail Roe and Casey.
Here is the column:
Fifty years ago the US Supreme Court heard the first arguments in Roe v. Wade, a case that would change not only constitutional law but also political divisions in the United States. Since then, pro-life advocates have posed ongoing challenges in an attempt to sidestep the decision. Over the years, pro-choice groups have at times exaggerated the risk of serious threat to Roe and his descendants. Now, however, reality has caught up with exaggeration. The court was just accepting a review of a Mississippi case that could deal a crippling or even fatal blow to Roe.
But President Biden has a familiar backup plan.
Dobbs vs. Jackson Women’s Health Organization appears, at first glance, to be an incremental – non-existential – threat to Roe. Mississippi lawmakers decided to ban abortion after 15 weeks, seven weeks earlier than previous laws that passed constitutional muster. Dobbs, however, is the long-awaited “clean case” – one that has a clear, unhindered shot at the Planned Parenthood v. Abortion control key. Casey, the Roe, effectively reformulated the key criteria that the Constitution prohibits abortion before a fetus has reached viability.
The court has long favored off-ramps and differentiated decisions in abortion cases, a recognition of Roe’s political and social importance. But Dobbs is about as nuanced as a punch in the jaw. The case was only accepted on one question: “Are all bans on voting before viability unconstitutional?” The court might as well have asked, “Can we exempt Casey and return important decisions on reproductive rights to states.”
The court’s acceptance of the case could suggest it finally has a stable majority to reverse important aspects of Casey. This comes a year after judges broke Louisiana’s restrictions on abortion clinics; In this case, Chief Justice John Roberts cast the key vote to approve the results. Roberts’ approval, however, has been troubling to many pro-choice proponents. He only voted with the Liberal judges because Louisiana law was virtually identical to a previously court-ratified Texas law, and he felt the record left little flexibility. However, he went to great lengths to criticize the precedent built on Casey, insisting that “no one has asked the court to review the constitutional validity of the unreasonable burden standard”.
The biggest change, however, is justice Ruth Bader Ginsburg was in the field then and justice now Amy Coney Barrett sits in place of the late Ginsburg. As a law professor, Barrett wrote extensively and passionately about the deep flaws in Roe and Casey. Your nomination was the greatest single achievement a president had ever made for real-life voters. In Barrett’s confirmation, Sen. Amy Klobuchar, D-Minn., Urged Barrett to see Roe the same as Brown v. Board of Education, as “super precedent.” Barrett replied that “Roe doesn’t fall into that category.” This resulted in a practically audible gulp of pro-choice groups.
None of this bodes well for pro-choice advocates who have been strongly opposed to accepting this case. The White House appears to be preparing for the worst case scenario. In response to the adoption by Dobbs, White House press secretary Jen Psaki said: “The President is required to codify Roe regardless of the … outcome of this case.” In other words, Biden wants Roe to be controlled by federal law, rather than the constitutional authority.
(Official White House photo by Adam Schultz)
It was an insightful and ironic answer. Roe was seen as a great victory for removing abortion rights from legislative discretion by making it a constitutional imperative. Now, Biden plans to overturn any legislative discretion given back to states by anticipating state abortion laws. Before Roe, abortion was seen as a central state problem that left politics to the electorate of each state. The Biden government would effectively use any discretion in the legislation to federalize the abortion law.
It is a signing move for the Biden government, the most hostile to state rights in modern history. President Biden has shown little patience with states taking opposing actions in different areas.
For example, in the COVID-19 bill, states received billions of federal dollars with one important, unprecedented catch: They had to promise not to cut taxes even if the gust of federal money got them more money than they needed.
Biden tries to legislate to negate another Supreme Court ruling: In 2018, the court dealt a blow to unions when it ruled that government employees could refuse to pay union dues – so Biden wants to anticipate states’ right to work. While Congress has long passed important labor laws, the pro-law would effectively deprive states of the ability to make decisions in this area.
Then there is HR 1, a bill that would effectively federalize elections, including negating the state identification law, redistributing rules, and a host of other restrictions.
In a growing number of areas, the Biden government would achieve national consensus by giving states a federal mandate. Some of the government’s expansive demands are already being challenged and could ultimately reach a Supreme Court with a majority of pro-federal judges. Efforts to oust states on abortion, however, could prove to be the hardest selling point if they use Dobbs to return some level of discretion to states.
There are obvious limits to the Biden government’s pro-choice values: they clearly do not extend to state autonomy or authority. When it comes to the right to make important political decisions – from elections to trade unions to taxes and climate change to abortion – states have fewer and fewer decisions to make. You have the same freedom that automaker Henry Ford has given every customer: you can choose any color of its Model T, “as long as it’s black”. In the next two years, many states are likely to object to the fact that they have been left with a kind of Model-T federalism in which they can freely choose any option – as long as it is Bidens.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.