The Trick That Could Bring Down Roe v. Wade

Conservative lawmakers filed a brief claiming abortion law is unworkable. That’s a lie.

The activists are holding signs that say "Never Again" and depict a woman's body with the words "This Is Not Property of the Government."
Abortion rights activists in front of the U.S. Supreme Court on May 21. Andrew Caballero-Reynolds/AFP via Getty Images

On Thursday, 207 members of Congress—all but two of whom are Republicans—asked the Supreme Court to abolish the constitutional right to abortion access. Conservative lawmakers have been requesting the reversal of Roe v. Wade since 1986, but Thursday’s brief boasts a record number of signatories, as well as an argument that might just work this time. It claims that Roe and its progeny should be overruled because they created an “unworkable standard” that courts cannot apply sensibly or consistently. That assertion is a cynical attempt to undermine the legitimacy of the court’s abortion jurisprudence. It is a lie designed to nab the vote of Justice Brett Kavanaugh. And it is the lie that may kill Roe.

Anti-abortion activists have been trying to persuade the court to abandon Roe since the decision came down in 1973. Their latest strategy is rooted in the fact that lower courts have interpreted the Supreme Court’s abortion rulings differently. That is no surprise, since judges frequently disagree about the precise meaning of precedent. Yet the lawmakers’ brief exploits this disagreement to claim that Roe must be eradicated. If conflicting understandings of SCOTUS precedent rendered that precedent invalid, then countless decisions would be on the chopping block—most notably D.C. v. Heller, which established an individual right to bear arms in such hazy terms that lower courts read it in wildly divergent, irreconcilable ways. The legislators’ argument is a ticket good for one ride only, a creative (if dishonest) attempt to work around precedent.

The chief impediment to Roe’s reversal has always been stare decisis, the doctrine that the judiciary should adhere to precedent unless there is some “special justification” for overruling it. The Supreme Court has outlined several factors that may provide this justification: If a past decision is poorly reasoned, unworkable, or inconsistent with recent rulings—or if it rests upon discredited facts—it is more vulnerable to reversal. By contrast, if a past decision created interests that individuals have come to rely upon, it has more value as precedent.

The anti-abortion lobby flung all these arguments at the Supreme Court in 1992’s Planned Parenthood v. Casey in an effort to overturn Roe. But the justices didn’t bite. Instead, the court declared that states could restrict abortion access, but could not impose an “undue burden” on an individual’s right to choose. The decision to terminate a pregnancy, the court explained, is “central to the liberty protected by the Fourteenth Amendment.” Moreover, ever since Roe, “people have organized intimate relationships … in reliance on the availability of abortion.” In short, the right to abortion access was workable, congruent with constitutional liberty, and based on a scientific definition of viability. Millions of people had come to rely upon that right, and the court had no “special justification” for pulling the carpet out from under them.

Disgruntled by the Casey compromise, conservative lawmakers began promulgating targeted regulations of abortion providers. “TRAP laws” sought to regulate abortion clinics out of existence by imposing gratuitous and draconian rules. For instance, a number of red states compelled clinics to undergo expensive renovations to meet the requirements of surgical centers. They also forced doctors at abortion clinics to obtain admitting privileges at nearby hospitals, an onerous credential that does not actually help patients.

In 2016’s Whole Woman’s Health v. Hellerstedt, the Supreme Court clarified the undue burden standard, specifically as it applies to TRAP laws. When an abortion restriction’s burdens outweigh its “asserted benefits,” the court explained, it is unconstitutional. Whole Woman’s Health involved a Texas law that ordered clinics to meet surgical center requirements and obtain admitting privileges. The burdens of each requirement, the court concluded, outweighed their ostensible benefits, rendering them unlawful.

Initially, lower-court judges had no problem applying this rule. One federal judge blocked Missouri’s surgical center and admitting privileges requirement. Another federal judge froze Louisiana’s admitting privileges rule. Then Justice Anthony Kennedy, who provided the fifth vote against Texas in Whole Woman’s Health, retired—and the courts began their rebellion.
The 8th U.S. Circuit Court of Appeals upheld Missouri’s law, and the 5th U.S. Circuit Court of Appeals upheld Louisiana’s. Defying the Supreme Court, the 5th Circuit blessed the Louisiana law, even though it is indistinguishable from the law struck down in Whole Woman’s Health.

Now 207 members of Congress have seized upon this willful misinterpretation of Casey and Whole Woman’s Health as a reason to overturn both decisions. Their brief is authored by Americans United for Life, an anti-abortion group that wrote the model legislation upon which the Louisiana statute is based, and helped Louisiana defend the law it inspired. AUL has also released a “Playbook for Life” that expressly called upon lawyers to attack the right to abortion by insisting that it’s unworkable. “Up to now,” the playbook says, “the workability of Roe” has been “subject to less thorough analysis.” But it “is an essential dimension by which to reexamine Roe, and all the abortion decisions by the Court since Roe.” AUL proclaims that “over forty-six years of practical experience has shown Roe to be unworkable.”

In its brief on behalf of the members of Congress, AUL took this grievance directly to the Supreme Court. The 5th Circuit, the brief states, “labored to do the best it could with the vague and opaque ‘undue burden’ standard.” And its “struggle” clearly “illustrates the unworkability” of the right to abortion—as well as “the need for the Court” to decide whether that right should be “reconsidered” and “overruled.”

The only “struggle” at the 5th Circuit was the court’s Herculean effort to work around Whole Woman’s Health and deploy bad-faith word salad to defy SCOTUS. And now, in an act of remarkable chutzpah, AUL (and a big chunk of Congress) is citing the 5th Circuit’s decision to demonstrate that Whole Woman’s Health is unworkable. It’s a neat trick: Persuade states to test the limits of abortion rights, convince courts to push beyond those limits by feigning confusion, then ask the Supreme Court to scrap those limits because they’re unworkable. This reasoning is akin to a driver slashing their own tires then suing the manufacturer for making a faulty car.

Why did AUL develop this elaborate strategy to attack Roe? Probably because it knows Justice Brett Kavanaugh needs some pretense to kill abortion precedents other than his obvious opposition to abortion rights. Kavanaugh appears to have tricked GOP Sen. Susan Collins into believing that he wouldn’t overturn Roe. He’s already disavowed any genuine support for Whole Woman’s Health by voting to let the Louisiana law take effect, which would’ve left the state with just one doctor able to perform legal abortions. Now AUL is giving Kavanaugh cover to go farther and undermine the court’s entire abortion jurisprudence. It is urging him to say that, sure, he respects precedent—but the abortion decisions are so confusing, inconsistent, and unworkable that they do not even count as precedent.

In truth, AUL and anti-abortion lawmakers do not oppose the right to abortion because it is “unworkable.” They oppose it because they want to outlaw abortion. But when the Supreme Court overturns Roe, its conservative majority will want to give a firmer justification than “Kavanaugh replaced Kennedy.” Thursday’s brief provides that pretext. It may be exactly what Kavanaugh needs to let states banish abortion clinics altogether.