By Noah Feldman
The Georgia anti-abortion law signed last week and the near-total abortion ban Alabama will consider again Tuesday are just the most recent examples of what you could call “Kavanaugh laws.”
Like anti-abortion statutes recently enacted by Iowa, Kentucky, Mississippi, North Dakota and Ohio, these are blatantly unconstitutional laws openly intended to violate the U.S. Supreme Court’s abortion-rights jurisprudence that goes back to Roe v. Wade.
The Georgia law bans abortion after a doctor can detect a fetal heartbeat — usually around the sixth week of pregnancy and before many women know they are pregnant. The Alabama bill would essentially block abortion at any stage of pregnancy, except in situations involving a serious health risk to the mother.
These laws are being proposed and passed only because Justice Brett Kavanaugh has replaced Justice Anthony Kennedy. Pro-life activists are hoping that the court’s newest justice will provide the decisive vote to overturn Roe outright. Each of these laws is like a postcard to Kavanaugh, urging him to do what his old boss Kennedy was never prepared to do: throw stare decisis to the winds and bring the country back to the constitutional situation prior to 1973.
Defenders of women’s and reproductive rights, like Planned Parenthood, aren’t the only ones who have noticed this trend. In his dissent Monday in a case unrelated to abortion that nevertheless overturned 40 years of precedent, liberal Justice Stephen Breyer rhetorically wondered “which cases the Court will overrule next.”
So what happens next? In the immediate term, the overwhelmingly likely outcome is that the bills will be blocked by the federal district courts, as the first handful of Kavanaugh laws have already been. The vast majority of federal district judges, whether appointed by Democrats or Republicans, recognize that it isn’t their job to change Supreme Court precedent. Applying existing law, they will hold these laws unconstitutional and block them from going into effect.
The states that passed the bills can then try the federal courts of appeal. Those courts, too, are staffed with judges who know the difference between applying existing law and making new law. Again, the overwhelmingly likely outcome is that the courts of appeal will affirm the decisions of the district courts freezing the so-called heartbeat laws.
To be clear, there is a very small (but real) chance that one of these abortion bills might somehow survive the federal district court and a conservative appellate circuit. I would put it at 2%.
In this outlier scenario, a federal district judge comes up with or accepts some creative and implausible theory according to which laws banning abortion after a fetal heartbeat can be heard as somehow consistent with the legal framework created by the Supreme Court in the 1992 landmark case of Casey v. Planned Parenthood of Southeastern Pennsylvania.
Under the Casey rule, abortion is protected until fetal viability, usually defined as 23 to 24 weeks of pregnancy. The lower court would have to claim something outlandish for a lower court, like that new scientific developments have shown that the Casey framework no longer applies.
Then, a federal appeals court would have to uphold the district court. And then the case would go to the Supreme Court.
Because this scenario is so unlikely, it makes more sense to ask when the Supreme Court will get around to deciding the constitutionality of the heartbeat laws that are almost certain to be blocked.
Technically, the answer could be “never.” It takes four justices for the court to agree to hear a case. There’s little doubt that the court’s most hard-core conservatives — Justices Samuel Alito, Neil Gorsuch and Clarence Thomas — would vote to hear these cases in order to overturn Casey and Roe.
That leaves Kavanaugh and Chief Justice John Roberts. Kavanaugh is deeply conservative, but also has a realist streak. If Kavanaugh didn’t think Roberts was prepared to provide the decisive fifth vote to overturn Roe, it’s possible that he would refuse to grant the fourth vote necessary to hear these cases in the first place.
There’s also the possibility that Kavanaugh himself might not want to vote to overturn Roe, in which case he also wouldn’t want to provide the fourth vote to hear a heartbeat law case. It’s difficult to imagine Kavanaugh being to the left of Roberts on this or other issues, but it is certainly within the realm of possibility that they might be aligned.
Much, much more can and should be said about what Roberts and Kavanaugh might be thinking here — but that can wait for a future column.
Assuming for the moment, however, that Kavanaugh and Roberts are prepared to issue a landmark ruling and actually overturn Roe, there’s still the question of timing.
From a partisan political perspective, it would be a kind of madness for the conservatives to strike down Roe in the next Supreme Court term, which starts in October 2019 and ends in June 2020.
An epoch-making conservative decision on abortion would presumably send women to the polls in unprecedented numbers to vote for a Democratic presidential candidate. Kavanaugh and Roberts would not want to be the causes of that result.
Conservatives might turn out to vote for Trump in gratitude for a major pro-life decision. But there’s also a meaningful risk that those conservatives who never much liked Trump personally but wanted his Supreme Court appointments would feel that the mission was already accomplished. After the hypothetical overturning of Roe, they could stay home and let Trump be defeated.
So if a revolutionary abortion-rights retraction is coming from the Supreme Court, don’t expect it before June 2021. The court could easily take its time and agree to hear a case in the Supreme Court term that starts in October 2020 and ends in June 2021.
No matter what, we are headed for not months, but years of speculation and discussion about abortion rights and the court. The Kavanaugh bills are just the opening salvo.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.