Last week, the Ohio legislature passed a bill that would ban abortion of any fetus with a “detectable heartbeat.” Yesterday, Ohio Governor John Kasich vetoed it. At the same time, he signed another bill that bans most abortions after twenty weeks.
Americans who support legal abortion should not take much comfort in the fact that Kasich vetoed the more extreme measure. He did not do so to protect abortion rights, but only because he concluded that the courts would enjoin enforcement of the “heartbeat bill,” and that any state funds used to defend against legal actions would thus be wasted.
That conclusion is undoubtedly right. The heartbeat bill would have violated Supreme Court cases going back to Roe v. Wade in 1973—decisions that were reaffirmed by the high Court as recently as this past June in Whole Woman’s Health v. Hellerstedt. Those precedents forbid states from proscribing abortion prior to fetal viability, that is, before the fetus can survive outside the womb. Even the twenty-week law that Kasich signed will probably be invalidated on the ground that most twenty-week fetuses are not viable and that the law’s health exception to the ban is too narrow.
But at least there are lawyers who will argue that a twenty-week fetus is viable. By contrast, no one thinks that a fetus at six weeks of development is viable. Yet that is roughly when a fetal heartbeat is typically detectable.
Surely the Ohio legislators who voted for the heartbeat bill were no less aware of the likelihood of legal action than Governor Kasich. So why did they pass it? The short answer is that they—and many other pro-life legislators around the country—hope that with new appointments by Donald Trump, a majority of the Supreme Court will overrule Roe.
Roe Remains, For Now
Unless and until the Supreme Court overrules Roe, it remains binding on state courts and lower federal courts. Indeed, as Justice Anthony Kennedy explained for himself and his colleagues who were unanimous on this point in a 1989 case, even when the justices who are already on the Supreme Court have signaled that they are prepared to overrule an existing precedent, state judges and lower federal court judges must enforce the existing precedent, not the new rule that they anticipate. That principle has even greater force where, as here, the only reason to think that the Court might overrule a precedent is the prospect of new personnel.
If lower courts are bound to follow existing precedents unless and until those precedents are overturned, what about elected officials like legislators and governors? Most constitutional lawyers agree that elected officials, no less than judges, have a duty to obey the Constitution. In most circumstances, that means obeying not just the literal text of the Constitution but authoritative judicial interpretations of it as well.
To give an example occasioned by a recent tweet by the president-elect, a member of Congress would seem to be under some duty to vote against a bill forbidding flag burning, because the Supreme Court held in a pair of cases in 1989 and 1990 that such laws violate the First Amendment. So long as there is no reason to think that the Court might reconsider its flag-burning rulings, enacting and enforcing new laws forbidding flag burning merely interferes with the exercise of constitutional rights.
However, there are some circumstances in which elected officials may be justified in enacting or attempting to enforce a law that is unconstitutional under existing precedent. As I argued in 2006 when South Dakota enacted a law that violated the right to abortion, “the very fact that the Court sometimes does abandon its prior precedents means that legislatures must have some leeway to pass laws that violate current constitutional doctrine.” Otherwise, there would never be an occasion to test whether an old precedent remains good law.
Where is the line between permissible test legislation and impermissible defiance of existing precedent for no other reason than harassment of people who want to exercise their rights? There is no clear answer to that question, but the timing suggests that the Ohio heartbeat bill fell on the wrong side. Even if Trump nominees to the Court eventually create a majority for overruling Roe, there is no reason to think that there is already such a majority. The five justices in the majority in the June case striking down a restrictive Texas abortion law remain on the Court.
Would a “Trump Court” Overturn Abortion Rights?
With Republican Senators having succeeded in their refusal even to consider President Obama’s nomination of Judge Merrick Garland to fill the Supreme Court vacancy occasioned by Justice Antonin Scalia’s death, it is highly likely that the vacancy will be filled by a conservative justice in the new year. Democrats can filibuster, but if they do, Republicans are likely to exercise the “nuclear option” of abolishing the filibuster for Supreme Court nominees, much as Democrats in 2013 abolished it for lower court and executive branch nominees.
Filling the Scalia vacancy with a conservative would not result in the overruling of Roe. But what if one of the justices in the Whole Woman’s Health majority leaves the Court while the GOP controls the presidency and the Senate?
Trump has repeatedly stated that he will nominate pro-life jurists to the Supreme Court. However, that, in itself, is no guarantee that a Trump appointee would vote to overrule Roe. No person of integrity would promise the president or the Senate that he or she would vote one way or another on a particular case or issue.
Could a justice selected for his or her pro-life views end up reaffirming Roe? Yes. Indeed, it has happened before.
In the 1992 case of Planned Parenthood v. Casey, the lead opinion strongly suggested that one or more of its authors thought that Roe was wrongly decided as an original matter. Nonetheless, partly on the grounds of stare decisis—the principle that precedents should be respected—the Court concluded that Roe should not be overturned. The opinion retained what its authors called the “essential holding” of Roe. Perhaps a Trump appointee who is selected because he or she is expected to be pro-life would end up in the same place as the appointees of President Reagan and the first President Bush who co-authored the lead opinion in Casey.
But that is hardly likely. As a roughly century-old saying goes, “the race is not always to the swift, nor the battle to the strong; but that is the way to bet.”
What Would Come After Roe is Overruled?
If a Trump-reinforced conservative Supreme Court overturns Roe, what then? One possibility is that abortion would become entirely a matter for legislative discretion. In a post-election interview, Trump said that abortion would then be a state-by-state matter, but that’s not necessarily true. A pro-life Congress could enact federal laws banning abortion nationwide, and a pro-life Supreme Court might well uphold such laws.
But would the Supreme Court really say that the Constitution places no limits on abortion laws? Would five justices vote to uphold an abortion ban that made no exception for pregnancies that resulted from rape? For abortions that are necessary to save a woman’s life?
And what about contraception? Much of the opposition to Roe from judicial conservatives rests on the claim that the Constitution does not authorize the Court to infer unenumerated substantive rights from the Due Process Clauses of the Fifth and Fourteenth Amendments. But this complaint, if taken seriously, would lead to overruling not only Roe but also Griswold v. Connecticut, the 1965 decision that found a constitutional right of married couples to use contraception under the doctrine of so-called substantive due process.
Of course, it is unlikely that the federal government or any state would move to ban contraception generally. However, many people who consider themselves pro-life object to some methods of contraception that, they argue, work by preventing the implantation of a fertilized egg in the uterine wall, rather than literally by working contra (that is, against) conception. After all, the traditional pro-life position is that abortion is murder from the moment of conception. Would a state law banning one of the objected-to methods of contraception be upheld if Roe were overruled?
These examples show that if and when Trump and the Republican Senate place enough pro-life justices on the Supreme Court to overturn Roe, abortion litigation will not go away. On the contrary, for a time, at least, it would probably increase, as the conservative majority decided just how much further the government can go in regulating abortion than heretofore allowed.
Now that Governor Kasich has exercised his veto, it is clear that the Ohio heartbeat bill will not provide the key test case, but something very much like it from another state could. Indeed, given the pragmatic rather than principled basis for Governor Kasich’s veto of the heartbeat bill, it is even possible that he or his successor would sign a new Ohio heartbeat bill if and when Trump fills a second vacancy on the Supreme Court.