I think that is by far the most likely scenario, especially for the most extreme laws like the AL statute.

IDK, this supreme Court was handpicked to address the issue, not avoid it. I highly doubt this court will deny cert. Plus, its the 11th not the 9th hearing the appeals for both AL and GA.

It depends on Roberts, Kavanaugh and Gorsuch. When you need 4 votes to take a case. You have Alito and Thomas as a yes. I do not think Roberts wants to overturn Roe but maybe in favor of making minor exceptions. Who knows about Kavanaugh or Gorsuch. I would doubt they want to take it up this year and I would guess there would be some discussions with Roberts to pick the right case.

And if you believe this, then it is also logical to conclude that Roberts would tell Alito, Thomas, Kavanaugh, and Gorsuch that they should think hard before voting to grant cert because he (Roberts) is no guarantee to vote to overturn. I guess it's possible that one of the liberal justices could put Roberts to the test by voting to grant cert, but that seems unlikely.

I don't understand this post at all. First, the constitution can be amended if there is enough of a consensus for doing so. Second, why on earth should we refrain from exchanging opinions on issues that will not be decided by referendum?

Why does this matter. Both Circuits are guaranteed to conclude that the AL statute, for example, is unconstitutional. The AL legislature hasn't exactly been hiding the fact that the whole point was to draft a bill that was blatantly unconstitutional under existing Supreme Court precedent.

https://slate.com/news-and-politics/...berts-roe.html

doubt the SC overturns Roe.

but they will certainly rule all of these crazy state laws like in AL and the hearbeat bills as constitutional.

To be clear, I think Roberts would be willing to continue incrementally eroding the right to an abortion in the same way the right has been incrementally eroded for the last several decades.

I do not think it will persuade Thomas or Alito. They will vote cert if they disagree with the ruling. No one really has enough information on Cavanaugh and Gorsuch, but I would guess that they would help Roberts pick and choose the right case to bring forward.

The AL statute is effectively a total ban. Any opinion that purported to uphold Roe but which held the AL statute constitutional would be absurd.

This result is even more unlikely in my opinion than the Court directly overturning Roe.

Help Roberts pick the right case to do what? I thought you believed that Roberts did not want to explicitly overturn Roe.

And I'm not sure Roberts needs any persuasion from other justices, much less help, when it comes to choosing cases that allow for incremental erosion.

You have like 28 states passing abortion bills from Alabama, the heart beat bills (early as 6 weeks) to the early 2nd trimester. Which does not include all the waiting time ones etc.

There is a lot to pick and choose from. They are not taking every case and if you want to set the precedent and let states know how far your willing to interpret Roe human life, viable etc. It does not make sense to take a heartbeat bill if Roberts is only willing to set the new viability/human life at 18 weeks etc.

I am proly misunderstanding how this works. I dont think they will rule on Roe so it wont be overturned. They will rule on this AL law and they will allow it.

ofc it is absurd.

They will write an opinion that other lower courts will follow. That opinion will let the other courts know if Roe is still good law and to be followed or if the new opinion sets a different law/standard/test to be followed in deciding if abortion laws are constitutional and that they should no longer follow Roe. (which means it is overturned) To allow the Alabama law you pretty much need a opinion saying Roe is overturned and no longer to be followed by the lower courts. I do not think Roberts is prepared to go there. But we shall see.

I think you are misunderstanding how this will work. The core holding of Roe is as follows:

1) There is a right to privacy implicit in Due Process Clause of the 14th Amendment.

2) Implicit in that right to privacy is the right of a woman to decide whether to have an abortion.

3) The right to privacy is fundamental, but not absolute. It must be balanced against the state's interest in protecting women's health and protecting prenatal life.

4) Applying the balancing test, a state may not limit abortion in the first trimester, a state may impose reasonable regulations related to health in the second semester, and a state may limit abortion entirely in third trimester as long as there is an exception for when the mother's life was at risk.

Among legal scholars, Roe was controversial because 1) and 4) are not obvious from the text of the Constitution, and 4) looked a lot like legislation.

Planned Parenthood v. Casey replaced the trimester framework with a "viability of the fetus" test and reframed the Roe balancing test as a test of whether the state had placed an undue burden on the right to abortion, with undue burden defined as "a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

Virtually all Supreme Court decisions on abortion flow directly or indirectly from these decisions.

The AL state effectively is a total ban. I don't see any way for the Court to write an opinion that both (i) upholds the constitutionality of the AL statute; and (ii) confirms the core holdings in Roe (the right to get an abortion is implicit in the right to privacy) and Casey (state cannot impose an undue burden).

The Supreme Court is not immune to intellectual dishonesty, but there is a always at least a superficial veneer of logic, even in the most politicized decisions. I don't see a path for even a superficial veneer of logic. In other words, the decision would expose the Court to widespread ridicule and criticism, much more ridicule and criticism than the Court would have to endure if it flat out rejected the holdings of Roe and Casey.

Grest post Rococo.

Quality post roco. You must have snagged a CALI in Con Law back in the day.

I think your analysis is right. My fear is the Court hears it. Denies to overturn the Appellate level, but the far-right justices like Gorsuch or Kavanaugh lay out a roadmap in dissent for a constitutional path. The legal logic of that dissent will be something like, "new tech = detecting pregnancy earlier. 1st trimester rule of Roe is no longer needed as we can detect better. Court believes total ban is unconstitutional but would be open to reasoning re: shortening the timeline in the future".

Enter the next piece of legislation in a few years that shortens the window to 8 weeks or some arbitrarily short amount of time and they use this opinion as the foundation for their argument. I think R's are smart enough to realize you don't have to overturn Roe if you can limit its impact significantly.

I seriously hope this does not happen and hope I'm 100% wrong.

+1 nice post. You straightened me out on a few things I was mixing up between Roe and Casey.

I think your analysis is right. My fear is the Court hears it. Denies to overturn the Appellate level, but the far-right justices like Gorsuch or Kavanaugh lay out a roadmap in dissent for a constitutional path. The legal logic of that dissent will be something like, "new tech = detecting pregnancy earlier. 1st trimester rule of Roe is no longer needed as we can detect better. Court believes total ban is unconstitutional but would be open to reasoning re: shortening the timeline in the future".

Hopefully not, because this is the problem you get having lawyers screwing around with medical issues.

We can "detect" pregnancy within a week of the blessed event. Two weeks for home pregnancy tests (it always amazes me the % of people who can't read the goddam things.) Detecting pregnancy isn't the issue.

The issue is when you determine "personhood" for lack of a better term. Previous rulings hand waved the issue away - but I can see the court coming down on a 20 week stand. 21 weeks + a few days is the current earliest survivor, and as I noted above there is NO reason to think that number is going to change any time soon.

MM MD

WOW Rococo that is a really fine post. Thanks.

I can see a SC decision along the lines of current medical technology allows the state an interest in preserving the fetus or rights of the fetus earlier than the second trimester with a modification of the Casey balancing test (with some additional factors that favor the state over the rights of the female). This allows Roe to remain good law.

Not that any of these new abortion laws are trying to thread this needle. I dont know how they survive an initial federal decision/appeal.

But you're arguing in terms of medicine and science. If the far-right justices want a way to end abortion without literally overturning Roe, the path will be early detection imo. I'm not saying it has any basis in science necessarily, but its the only way to shorten the window from 21 weeks down to 6-10 weeks with any sort of "credibility" (And I use that term with heavy quotes). I think its pretty much decided that a 6 week old fetus can't sustain on its own, but again, if you're goal is to shorten that window, you just change the argument. Instead of viability, it becomes about early detection/sleeping on your rights in a sense. R's can't win on viability, but they could sell something along those lines imo.

I'm not a doc, but I assume home pregnancy tests and early detection has made tech advancements since the 1970's like everything else. I'm sure you're more knowledgeable on that than I am and can correct me if I'm wrong. If tech has advanced, it opens that window for the argument.

Fwiw, I'm a lawyer, not a doctor, so I'm not disputing you're right. I'm just saying we've seen SCOTUS use completely illogical arguments in recent history to get the outcome they want. All judges do it. I just think the science behind abortion is pretty rock solid at this point, so if you want to shorten the window, you shorten it based on other grounds.

I really hope I'm wrong of course. I just don't have much faith in the current SCOTUS is all.

Seems odd they could detect anything that causes stuff like viability and the self-knowledge of pregnant people to become undetectable. Even at higher resolution it’s the same situation.

Recent SCt decision on the Indiana statute seems like a clear signal that the Court is not prepared to tackle Roe head on, at least in the very near term.

Yeah, when I saw that I thought of your comments. Interesting dynamic with Thomas' separate opinion also.