It’s worth imagining how a national edifice of legal protections for abortion can be reconstructed, writes Ed_Kilgore
Lisa Turner holds her daughter, Lucy Kramer, during a candlelight vigil outside the United States Supreme Court in Washington, D.C., on June 26, 2022. Photo: Evelyn Hockstein/REUTERS Just a week after the U.S. Supreme Court abolished the constitutional right to abortion, the 49-year legal regime introduced by Roe v. Wade has given way to a horrific and confusing landscape.
Obviously, it can’t happen soon. Now that Roe has been reversed, you can safely assume that Chief Justice John Roberts has fully overcome his compunctions about moving too fast to kill abortion rights. He’ll be a solid sixth vote defending the new Dobbs precedent. So barring a change in the size of the nine-justice Supreme Court, it would take a net change of two justices before the Court could even begin to reverse Dobbs.
Instead, Trump won and Garland’s seat went to Neil Gorsuch. Then pro-choice Justice Anthony Kennedy was succeeded by Brett Kavanaugh, and then in a final calamity, Justice Ruth Bader Ginsburg died just in time to be replaced by Amy Coney Barrett.The political conditions necessary for Democrats to re-flip the Court are exceptionally daunting. They’d have to hold on to both the White House and the Senate for long enough to get lucky with conservative vacancies.
As time goes by, moreover, the prospect of simply re-establishing Roe and Casey as precedents will fade; progressive justices would almost certainly need to reach agreement on a new foundation for abortion rights, likely centered on equal-protection claims rather than the shaky ground of substantive due process on which Roe and later Casey rested. All this will take time and then preparatory litigation, with conservatives bitterly fighting a rearguard action.
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