How Roe is likely to go

Since the retirement of Justice Anthony Kennedy, commentators on both sides of the abortion debate have insisted that the Supreme Court will soon reverse Roe v. Wade, the 1973 decision recognizing a woman’s right to choose abortion. CNN analyst Jeff Toobin predicted that 20 states would outlaw abortion in the next 20 months. With the nomination of Judge Brett Kavanaugh, do commentators like Toobin have it right?

It is hard to predict with any certainty what most of the court’s conservatives would do when asked to overturn Roe. But some outcomes are more likely than others, and most legal experts would be surprised if the court explicitly reversed Roe so soon, or maybe ever.

That doesn’t mean commentators are wrong that Roe is in peril — quite the opposite. But the court has easier, less controversial ways of chipping away at abortion rights. Given what the anti-abortion establishment has been doing for decades, a stealth attack on Roe is more likely, and more likely to succeed.

The anti-abortion movement champions a right to life that begins at fertilization, and immediately after the court decided Roe, abortion opponents fought for a constitutional amendment that would ban abortion. But by the mid-1980s, pro-lifers had given up and looked for a new strategy. Rather than changing the text of the Constitution, abortion opponents would try to see Roe reversed.

And rather than stressing that Roe wrongly ignored the right to life, abortion foes would argue that most abortion regulations were constitutional, even if the court left Roe in place.

Regardless of what happens next, this strategy has already made a difference. Although the court has never overturned Roe, the justices did make it much easier for states to restrict abortion. In 1992, in Planned Parenthood v. Casey, the court held that states could regulate abortion as long as laws were not unduly burdensome. And since it was hard to determine what an undue burden was, states felt freer to restrict the procedure.

What does all of this mean, given Kavanaugh’s selection? Trump’s pick has deep ties to the GOP establishment. Like many conservative jurists, he may sympathize with arguments that Roe is a perfect example of judicial activism. But even with Kavanaugh, the court probably will not vote to overrule Roe in a fell swoop. There have been few signals in the court’s decisions of any such dramatic change.

Nor is it likely that the anti-abortion establishment will push judges like Kavanaugh out of their comfort zone. Groups like the National Right to Life Committee have long argued against asking for too much too soon, fearing that the court will not go along. And mainstream anti-abortion groups may have political reasons for avoiding a clear overturning of Roe.

In the early 1990s — the last time everyone expected the court to undo Roe — pro-choice leaders hoped that a decision expressly overturning the ruling would lead to a political backlash from voters who supported legal abortion.

A stealth overruling would be easier for most voters to miss, and much harder for them to understand. For example, the court could simply hold that many abortion laws are not unduly burdensome. It would be hard for the justices to say that a law banning abortion at six weeks does not conflict with Roe or Casey, but the conservative majority could avoid dealing with these laws, at least until the stage was better set for an opinion overturning Roe.

The risk to Roe is real, but it is more likely to go out with a whimper than a bang.