“If people are still able to get 95 percent of the abortions that happen in this country at 15 weeks or before, that’s still very significant,” he said. “That’s not Roe being overturned. Roe being chipped away? Yes. But Roe being overturned means that no abortions are legal in a state.”
Some members of the Supreme Court’s conservative majority may be tempted to look for a half measure, one that would undermine Roe and Casey without expressly overruling them.
Casey itself revised Roe in ways that supporters of abortion rights had said would amount to overruling Roe. When the Casey case was argued, Kathryn Kolbert, a lawyer for a group of abortion clinics challenging a Pennsylvania law, told the justices that abandoning the demanding form of heightened judicial scrutiny required by Roe and replacing it with “a less protective standard such as the undue burden test” would “be the same as overruling Roe.”
The court did abandon such heightened review, and it did replace it with the now familiar undue burden test, under which the court has sustained restrictions on abortion. Yet few people would say that Casey overruled Roe.
Some legal experts wonder if the court can make a similar move in the new case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392.
“One of the questions many of us will be interested in is whether it’s possible to sever viability from Roe and Casey and have anything left — if the court can pull off the trick it did in Planned Parenthood v. Casey, when it eliminated what many viewed at the time as the core of Roe v. Wade and yet preserved what it deemed to be the essential holding,” Professor Ziegler said.
Professor Mahoney said that at least some of the justices may be inclined to try.
“We draw lines all the time in constitutional adjudication,” she said. “We have no choice. And we recognize that they are not entirely satisfactory.”