Supreme Court Could Change Abortion Rights Without the Alabama Law – The New York Times
But there are three members of the court — Justice Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — who seem less patient. It takes only four votes to add a case to the court’s docket, meaning that either Chief Justice Roberts or Justice Kavanaugh could force the court to confront the ultimate question of the fate of a constitutional right to abortion when a case concerning the Alabama law or a similar one reaches the court.
Melissa Murray, a law professor at New York University, said much will turn on Chief Justice Roberts, who may have conflicting impulses.
“Recent departures and appointments, coupled with an increasing skepticism of established precedents, suggests the Supreme Court is more amenable than ever to overruling Roe,” she said. “The recent spate of restrictive abortion regulations reflects this new reality.”
“These laws are an obvious provocation — a clear attempt to take the question of Roe’s continued viability straight to the court,” Professor Murray said. “The real question is whether Chief Justice Roberts’s interest in preserving the court’s institutional legitimacy will outweigh the conservative interest in legislating abortion out of existence.”
The court’s liberal justices certainly seem nervous. On Monday, in a case overruling a precedent in a different area of the law, Justice Stephen G. Breyer’s dissent chastised the majority for acting rashly. Repeatedly citing the Casey decision, Justice Breyer said he feared for the future.
“Today’s decision can only cause one to wonder which cases the court will overrule next,” he wrote.
Richard W. Garnett, a law professor at Notre Dame, said the constitutional confrontation over the right to abortion sought by the sponsors of the Alabama law was unlikely to come to pass.
“It appears that the proposal’s supporters intend to create an opportunity for the current court to revisit its decisions creating that right,” he said. “However, it is not clear that the current justices who have expressed doubts about the correctness of decisions like Roe and Casey will want to take up a case that squarely presents the question whether these decisions should be overruled. Instead, they might well prefer to first consider less sweeping abortion regulations and to uphold them even under the current doctrine.”