Legally speaking, Americans on both sides of the abortion debate are understandably curious about what comes next for the Alabama abortion law banning virtually all abortions, including those resulting from rape or incest. Does the Supreme Court have to take a challenge to this or any other abortion law? And if it does, what would that mean for Roe v. Wade, which established a privacy right to abortion under the Due Process Clause of Fourteenth Amendment?
The answer to the first question is: No. The Supreme Court has discretion to accept or reject cases submitted for review on what’s known as a petition for a writ of certiorari, which is essentially a request that the Supreme Court grade the legal papers of a lower court. The Supreme Court sets its own rules regarding which cases to accept. The current rules require four of the nine justices to vote yes on a case. (Five justices must agree to stay an execution in a death penalty appeal.) The rules also provide that a petition for writ of certiorari “will be granted only for compelling reasons,” such as a conflict amongst lower courts as to an important question of federal law. (Lower courts sometimes need an umpire.)
The rules go on to state that a petition “is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.” So if a lower court states the law correctly, but applies it incorrectly, the Supreme Court won’t step in. It will step in when a lower court “has decided an important question of federal law that has not been, or should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”
When it comes to the Alabama law, none of these criteria would seem to warrant review by the Supreme Court. The Alabama law is plainly unconstitutional under Roe and the key case that followed, Planned Parenthood v. Casey, because its approach to abortion translates into an “undue ban” on the core constitutional right recognized in Roe. Lower courts will strike it down. If the Supreme Court were to accept an appeal of such a ruling, it would be a signal that at least four of the nine justices are keen on revisiting Roe.
The problem is that granting a certiorari petition under such circumstances would be in tension with the Supreme Court’s rules, referenced above. Now, these rules aren’t exclusive—four justices can take a case for reasons other than those listed in the Court’s rules.
It’s difficult to see how the Alabama case would qualify according to the rules for granting certiorari. That doesn’t mean it couldn’t—as I said, four justices can decide to take a case for any reason.
But let’s say four justices on the Court very seriously wanted to revisit Roe with an eye toward reconfiguring the present constitutionally-recognized right to abortion. If they could not get a fifth justice to support them for granting certiorari, then they would have to suspect that they would not be able to get a fifth justice to join them to create a majority. And so it is difficult to imagine that they would grant certiorari to revisit Roe when they knew that they would not have the votes to overturn it.
So what are the odds that this Court has a majority interested in a major revision of Roe?
First, consider that abortion is probably the single most politically polarized issue in American politics. Second, consider that beginning with Mitch McConnell’s refusal to bring President Obama’s nomination of Judge Merrick Garland to the floor, and continuing through the grotesquely politicized confirmation of Justice Brett Kavanaugh, the Court has become even more politicized in the view of the public.
Chief Justice John Roberts has shown deep concern with the Court’s place in the public consciousness, and would presumably make a strong pitch for sparing the institution from the inevitably negative fallout that would follow a decision to uphold the Alabama law by reversing Roe. And it is not clear which justices would be comfortable reversing a major decision, such as Roe, on a 5-4 vote.
All of which is to say that the odds of this Court ruling to uphold the Alabama law seem reasonably low. Which makes the odds of them granting certiorari even lower. Because a bloc of judges that wants to overturn a law isn’t going to take a case that doesn’t qualify under the normal rules for certiorari if it thinks the law is likely to be upheld.
The more feasible outcome is that the Supreme Court will continue to tinker with Roe by reviewing laws that arguably impose an “undue burden” on women’s right to decide for themselves whether to terminate a pregnancy.
There is a veritable pu pu platter of laws to choose from these days. Georgia, Kentucky, Mississippi, Ohio, and Missouri have passed laws (a federal judge already struck down Mississippi’s as barred by Supreme Court precedent) that would prohibit abortion when a fetal heartbeat is detected—at about six weeks. If upheld, such laws would mean that, for some women, the constitutional right to decide whether to continue with a pregnancy evaporates before they even know they are pregnant. A conservative-leaning Supreme Court could decide that, in light of the government’s countervailing interest in the potential life of fetuses—which it recognized in Casey—such laws do not have “the purpose and effect of placing a substantial obstacle in the path of a woman seeking abortion of a nonviable fetus.”
Or the Court could strike down the heartbeat laws and draw the constitutional line somewhere else—perhaps at the middle of the second trimester, where Utah and Arkansas would currently ban the procedure. It could grant certiorari on appeals for lower court rulings either upholding or striking down any one of these laws.
Finally, there’s the matter of stare decisis—the norm that generally governs Supreme Court decision-making, under which newer courts respect the decisions of its predecessors even if five of today’s nine justices would have come out the other way. This Court has not been shy about ignoring that norm—which is not a binding law—so the idea that Roe must survive simply because of its longevity isn’t correct.
But it’s not nothing, either. In general, the longer a constitutional right stands, the more it can be said that millions of people, institutions, secondary laws and society in general have come to rely upon it. That’s something.