The states of Mississippi, Ohio, Georgia, Kentucky, Arkansas, Utah, Iowa and the latest one Alabama have been waging an all-out war against a woman’s right to choose. From laws ruling abortion illegal at a baby’s detectable heartbeat, 18 weeks (6 less than Roe v. Wade requires), the conservative movement against abortion has been diligently working towards reaching the Supreme Court to outlaw Roe v. Wade. Roe v. Wade became the law of the U. S. in 1973. Ever since then, multiple states have attempted to reverse Roe.
The most recent attempts, some of which will go into effect in 2020, appear to rely on the recent change of the Supreme Court to a 5-member conservative court. But perhaps these states need to go slower before attempting a Hail Mary pass to the Supreme Court. In sports as well as in law, Hail Mary’s never seem to go as planned.
The Supreme Court is highly selective in the cases that it takes up to review. The acceptance rate is extremely low and varies from 2-3 %. You have a better chance of being struck by lightening or being accepted into Harvard. The 2-3% of cases to reach the highest court come from appeals from all 50 states and the District of Columbia. And a law or case like these abortion laws does not proceed straight to the Supreme Court. It travels an often-long journey before petitioning before the Supreme Court. So, we are talking years—not days, weeks or months.
For cases which reach the Supreme Court, it is no guarantee that a case will be decided in favor of one party or the other—even one like these abortion state laws. First, the justices could decide to do the right thing and rule that the new laws are unconstitutional—considering Roe v. Wade. Chief Justice Roberts was the deciding vote who upheld the Affordable Care Act when it came before the court. Roberts is a Republican appointed by President George W. Bush. He upheld the law over party affiliation.
At another time in history dealing with abortion rights, another Supreme Court justice sided against party affiliation. In 1992, the case of Planned Parenthood v. Casey came before the Supreme Court to overturn Roe v. Wade. Justice Sandra Day O’Connor made up the supposed vote to overturn Roe. Justice O’Connor was a lifelong Republican and a staunch opponent of abortion rights. Yet, her vote in favor of Planned Parenthood in 1992 kept Roe v. Wade as the law of the land.
And in 2019, already Justice Neil Gorsuch, one of the five conservatives, broke rank and voted against his conservative justice peers on two occasions. He recently sided with the liberals on the Court in affirming Native American tribal rights. In another case involving companies that sold asbestos, he agreed with liberal justices that makers of machinery that required asbestos to work properly should be required to warn against the health hazards of asbestos—even though they did not manufacture or sell asbestos. In this case, Chief Justice Roberts was also in agreement with Gorsuch and the liberal justices.
While I think the conservatives are right to think that Justice Brett Kavanaugh will side with the new abortion laws. Justice Neil Gorsuch could become the wild card —much like others in the past have done. And there’s also Chief Justice Roberts who could also decide in favor of Roe with liberals, just like he did on the Affordable Care Act.
As I tell my clients, there are no slam dunks in law. Even the best cases can be lost before any judge.
Washington, D.C. based Debbie Hines is a member of the Supreme Court bar.