How Is the Supreme Court Going To Get Out of the Corner Into Which It Painted Itself in Respect of Abortion?

Will they turn to logic, experience, or politics?

If there is no constitutional right to abortion — as the Supreme Court held in reversing Roe v. Wade — then it follows that states are free to ban all abortion pills, regardless of the timing or circumstances of the pregnancy. 

Yet there is widespread public support, even among Republicans, for the right of a woman or girl to terminate early pregnancies. Will a majority of the justices take the Dobbs case to its logical conclusion and allow states to ban the “morning after,” the “week after,” or the “month after” pill? If not, where will they draw the constitutional line and on what basis?

Most Americans have mixed views regarding abortion. They oppose it near the end of pregnancy when the fetus is viable, except when the health of the mother is in danger. They favor it at the beginning of the pregnancy.

The dispute among non-extremists focuses on the middle terms. But the efforts of the justices over the past half century to draw clear lines based on the constitution have drawn criticism from all sides. There is scant reason to think that future efforts at temporal compromise will fare much better, but non-principled line drawing may be the only way out of the no-win box the justices have made for themselves.

Moreover, line drawing seems more appropriate to legislatures and administrative agencies than to courts, thus lending weight to the argument that the Supreme Court should leave it to the states to decide when abortion should be permitted. 

Last week’s case did not involve state legislation. It involved FDA approval and the alleged unsafety of the pill. Soon, though, the high court will be confronted with a state law that prohibits some or all early abortions, even using drugs that pose no danger to the woman.

We have a clear idea how Justice Clarence Thomas would vote and a pretty good idea about Justice Samuel Alito, both of whom dissented from last week’s unsigned decision to allow the drug at issue to continue to be prescribed at least temporarily.

We also know that Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson will vote to strike down any such ban. Chief Justice Roberts will probably join them with regard to early pregnancy, though that is not certain.

It is even less certain how President Trump’s three appointees — Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — will vote, although the logic of their votes and opinions in Dobbs should lead them to uphold any and all state bans on even the earliest of abortions. As Justice Oliver Wendell Holmes, Jr. once observed: “The life of the law has not been logic.”  He said it has been “experience.” Many today think it’s politics.

The Court’s decision to engage in judicial activism by overruling Roe, instead of merely upholding the Mississippi law that prohibited most abortions after 15 weeks, was bad politically for Republicans, who paid a price in the election that followed. It would be much worse for Republicans if the Republican justices made it impossible for young women to end all early pregnancies, regardless of the circumstances.

Although judges are not supposed to take into account the political implications of their constitutional decisions, many do. It is possible therefore that despite the logic of Dobbs, some of the justices who went along with the ill-advised breadth of that decision will figure out ways, illogical as they may be, not to allow states to ban the earliest pregnancies under all circumstances. It is also possible that the majority may feel compelled to follow the logic of Dobbs and uphold draconian state laws banning all abortion pills.

It is conceivable, of course, that Scotus will be spared the necessity of announcing such an extreme and politically unpopular decision — if no state were to legislate such a broad ban. Zealous advocates of the claimed constitutional “right to life” from the moment of conception, are likely to prevail somewhere. And equally zealous advocates of the “right to choose” are certain to challenge the ban.

Nor could the justices easily duck such a challenge. So we will see whether “logic,” “experience,” or “politics” prevails among the justices in the deeply and ideologically divided Supreme Court.