Conservatives won’t be able to repeal more than Roe

Since someone leaked a draft of the Supreme Court’s opinion in this year’s big abortion case, two questions have emerged about the scope of conservative policy goals. Will Republicans try to ban abortion by federal statute if Roe v. Wade is overruled, or leave the issue to the states? And will the Republican appointees on the Supreme Court overturn other precedents with a family resemblance to the 1973 abortion-rights ruling?

In both cases, there are reasons to expect circumstances to block conservative ambitions.

Many Republicans in Congress are saying that abortion after Roe will be a state matter, but they do not really believe it. Republicans overwhelmingly voted to ban partial-birth abortion at the federal level during the George W. Bush administration. More recently, they have sought a federal ban on abortion after 20 weeks of pregnancy. They succeeded in the first project and have failed in the second. Now that Roe appears to be on its way out, some Republicans are talking about a nationwide ban on abortion after six weeks.

But they do not appear to have the votes for the six-week ban, given that they haven’t had them for the 20-week ban, or even for federal protections for babies who survive abortions. They will not have a veto-proof majority for any such federal law so long as a Democrat is in the White House.

Even if a Republican wins in 2024, a federal ban would require either 60 votes in the Senate or the effective end of the filibuster. Almost all Democrats would presumably oppose the bans. There would also be a few Republicans who either favor legal abortion or think the federal government has no constitutional power to prohibit it. (I think it does have that power and that the question of whether to seek its exercise is one of prudence.) The main legislative action, then, will probably remain in the states, at least for several years.

The question about the Supreme Court’s trajectory arises because some of Roe’s premises also serve as foundations for other major decisions. The court has held for more than 50 years that the 14th Amendment, by prohibiting any state from denying any person liberty without due process of law, protects privacy. It invoked that privacy right to strike down laws against contraception in Griswold v. Connecticut (1965) and against sodomy in Lawrence v. Texas (2003). It relied on Lawrence, in turn, to rule in Obergefell v. Hodges (2015) that governments must recognize same-sex marriages.

In his draft opinion for the court in the abortion case, Justice Samuel Alito wrote that the 14th Amendment protects only those rights that are enumerated in the Constitution or deeply rooted in the nation’s history.

settled. Many of the criticisms that the court levies at Roe — and there are many — apply with equal force to other precedents.

For example, the court declares that the Constitution “makes no reference to abortion” and argues that abortion rights were “entirely unknown in American law” throughout most of the nation’s history. The same is true of contraception, which the court held states could not restrict in Griswold v. Connecticut. It’s true of marriage, including interracial marriage and same-sex marriage, which the court has held could not be prohibited in Loving v. Virginia and Obergefell v. Hodges. It’s true of sexual intimacy between consenting adults, which the court held states could not prohibit in Lawrence v. Texas.

The draft opinion also disapprovingly notes that “far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.” That’s not true. But nothing will stop the court from making the same false arguments about private intimate conduct or marriage equality. Mr. Alito ridiculed the “high a level of generality” in the reasoning of Casey, which spoke of individuals’ “destiny” and ability to define “their own concept of existence.” Similar language appearsin both Lawrence and Obergefell.

The court’s weak effort to limit its wrecking ball of an opinion to the abortion right is hardly a guardrail. If anything, it’s red meat for conservative litigators. Mr. Alito insists that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But that largely unreasoned aside is cold comfort when the court has provided reasons for criticizing Roe that seemingly apply to other cases. The court’s claim that the abortion right is unique because it “destroys” “potential life” or the life of an “unborn human being” cannot be taken seriously. After all, in the court’s decision invalidating the federal government’s contraception mandate, Mr. Alito wrote for the majority that employers were entitled to view contraceptives as abortifacients.

The caustic tone and aggressive reasoning suggest this conservative majority feels unconstrained. It does not fear political pushback for its angry tirade against abortion. It does not feel any sense of obligation or concern for the women who will suffer as a result of the opinion. And it has no sense of institutional propriety that might lead it to actwith more humility and caution.