How John Roberts could strike a compromise to save Roe — while letting states butcher abortion rights
If a leaked majority draft opinion by Justice Samuel Alito holds up, the U.S. Supreme Court will — in the case Dobbs v. Jackson Women’s Health Organization — strike down Roe v. Wade, thus allowing individual states to pass total bans on abortion. Moreover, Roe’s demise would also pave the way for Republicans to pass a nationwide abortion ban if they regain control of Congress, and they would no doubt be happy to abolish the Senate filibuster in order to get such a ban passed.
But defenders of abortion rights are still hoping that some type of compromise on Roe will be reached at the last moment. Journalist Josh Gerstein describes such a compromise in an article published by Politico on June 19.
The hypothetical compromise that Gerstein describes would hardly be ideal from a pro-choice standpoint, but it would be better than what Alito called for in his draft opinion. In his draft, written in February and leaked by Politico on May 2, Alito declared, “Roe was egregiously wrong from the start…. We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The four justices joining Alito in that 5-4 draft opinion are Clarence Thomas and all three of Donald Trump High Court appointees: Brett Kavanaugh, Amy Coney Barrett and Neal Gorsuch. The four dissenters are Chief Justice John Roberts and three justices appointed by Democratic presidents: Sonia Sotomayor, Elena Kagan and Stephen Breyer, who is retiring from the High Court and will be replaced by President Joe Biden’s nominee, Judge Ketanji Brown Jackson, later this year.
Gerstein, in his June 19 piece, stresses that a Roe compromise in Dobbs is unlikely but not out of the question.
“When the two sides in the abortion debate squared off at the Supreme Court last fall, they agreed on one thing: There was no middle ground,” Gerstein writes. “Now, any hope abortion rights supporters have of avoiding a historic loss before the Court lies with Chief Justice John Roberts crafting an unlikely compromise. In the wake of Politico’s report last month on a draft majority opinion that would overturn Roe v. Wade, Roberts would have to convince at least one of his five Republican-appointed colleagues to sign on to a compromise ruling that would preserve a federal constitutional right to abortion in some form while giving states even more power to restrict that right.”
\u201cRoberts is floating a compromise that allows abortion bans at 15 weeks (or perhaps earlier) but preserves the right early in pregnancy. But I don't hear any takers. Barrett and Kavanaugh do not sound remotely interested.\u201d— Mark Joseph Stern (@Mark Joseph Stern) 1638372172
\u201cThis question from Amy Coney Barrett is basically game over for Roe. She says: Now that all 50 states have "safe haven" laws that let women relinquish parental rights after birth, the burdens of parenthood discussed in Roe and Casey are irrelevant, and the decisions are obsolete.\u201d— Mark Joseph Stern (@Mark Joseph Stern) 1638372172
Gerstein goes on to explain how Roberts might “thread that needle.”
The Politico reporter notes, “The central organizing principle for a Roberts opinion is likely to be one he has articulated many times: that the Court shouldn’t issue a sweeping decision when a more modest one would do…. He suggested that the essential right to end a pregnancy could be maintained even if states were allowed to sharply limit abortion before viability outside the womb, which is generally considered to be around 22 or 23 weeks.”
Attorney Kathryn Kolbert, on the Scotusblog podcast, recently said there is “not a chance in hell” that Kavanaugh, Gorsuch or any of the other right-wing justices will join Roberts in a Roe compromise. Kolbert argued the abortion rights side in Planned Parenthood v. Casey in the early 1990s.
But law professor Kate Shaw believes that if a conservative justice joined Roberts in a Roe compromise, it would be Kavanaugh.
Shaw told Politico, “It doesn’t seem to me inconceivable that he could convince Kavanaugh to join in that opinion.”
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