Overruling Roe risks deligitimizing the Court
Just for the record, if the Supreme Court overrules Roe v. Wade, no one should be surprised if this risks the Supreme Court as currently constituted.
There is a good reason for stare decisis. Even if current members of the Court don’t like certain precedents, overruling them based on their personal philosophy is generally not a good course of action. The Court should tread with caution.
This is particularly so for a precedent like Roe. Besides its articulated basis, there are strong arguments that its result is compelled by the 13th amendment, in that forcing a woman to bear a child is tantamount to involuntary servitude prohibited by that amendment. See https://scholarlycommons.law.northwestern.edu/cgi/viewcontentMoreover.cgi?article=1031&context=facultyworkingpapers.
Moreover, there is a strong establishment clause argument against abortion restrictions. There has been discussion of the realms of science and religion. A prohibition on abortion is quintessentially religious. Science cannot tell us whether abortion is right or wrong. There is a moral judgment involved when a woman makes a choice about an abortion, and religion can provide a guideline. Those who believe that abortion is wrong under most circumstances are in most cases basing that belief on their religion. Conservative evangelicals, as well as the Catholic Church hierarchy (not necessarily most of the Catholic faithful, though) teach that abortion is wrong. That is fine, but enacting this belief into law and forcing it on those who do not share that religious belief is precisely one of the things the establishment clause prohibits. Under Supreme Court jurisprudence, statutes must have a “secular purpose”. Abortion restrictions based on a belief that abortion is wrong are based on a religious purpose, not a secular one. See John Morton Cummings, The State, the Stork, and the Wall: The Establishment Clause and Statutory Abortion Regulation https://scholarship.law.edu/cgi/viewcontent.cgi?article=1810&context=lawreview. What is particularly troubling here is that, if the Court were to overrule Roe, it would not just be a State law establishing religion, but the Supreme Court justices themselves imposing their (Catholic) religious views on the rest of us. It is astonishing to me that the Supreme Court now has 7 Catholic justices (counting Gorsuch as Catholic), only one of whom, Sonia Sottomayor, is a liberal. Not only would a Supreme Court that overruled Roe be rightly accused of imposing a minority political view on the rest of the country, but a minority religious view. Asking them to recuse themselves might be quixotic, but something they should consider.
It is a well-known principle of military doctrine that overextending yourself is not a good idea. Witness Napoleon’s conquest of Moscow, and the concept of a Pyrrhic victory. If the Supreme Court overrules Roe, that will lead to a decline in the perceived legitimacy of the Court and its eventual transformation, by adding new justices, imposing terms limits, or otherwise. It may take awhile, but I think the counrty will get there. In the interim, there will be tremendous turmoil in the country, as women are forced to travel out of state, turn to dangerous procedures, or use pills. If the Court is smart it will not do this, but I am not optimistic.
I am not too optimistic in Roberts’ attempt to find a middle ground. The problem is that Roe already is a middle ground, in that it allows some restrictions on abortion. Essentially, Roe recognizes that restrictions on infanticide find popular support, hence drawing the line at viability. Redrawing the line before viability will just result in further litigation and pushing the line back further. If 15 weeks is ok, why not 14 weeks, or 13 weeks, and so on? What basis is the Court to use to draw such a line? (The youngest baby born was 21 weeks old, so arguably the Court could redefine viability, but that would not justify a 15-week limitation.)
In the “nice try” department, we have Prof. Nicole Garnett, of Notre Dame law school, quoted in Dec. 6, 2021 New York Times: “When the court straightforwardly upholds the Constitution and stays within its proper role, despite the possibility of negative publicity… its legitimacy is enforced.” The problem with this justification of overruling Roe v. Wade is that Roe has been settled and widely accepted for 50 years. Yes, the court could maintain legitimacy by restrained decisions — for example, not recognizing new constitutional rights — but overruling Roe does not fall within an area of judicial restraint. The court can decide not to lead the country forward by its decisions (this would be a conservative attitude that liberals might not like, but would probably accept), but if it decides to try to lead the country backward, its legitimacy falls.
There is a way the Court could save its legitimacy. This would be by overruling its 2008 District of Columbia v. Heller Second Amendment decision upholding individual rights to gun ownership on the same day it issues its Roe decision. The court could say: You know, we didn’t get that one right. The second amendment refers to a “well regulated militia” and we read into it more than what was there, so actually the states are free to regulate individual gun ownership unconnected with service in a militia. Fat chance the court would do that, but it could actually work to show that the court was taking a position of restraint and not a political position.