Professor Arkes anticipates what might happen if the Supreme Court seeks to take “the low door under the whole” in the Dobbs case—sustaining the law in Mississippi while affecting not to overrule Roe v. Wade.
“The odds are that the statute in Mississippi will be sustained by a Court now containing Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch. And that judgment, breaking through the borderline of viability, would be enough to end Roe: Either the case will be overruled, or the holding will be scaled back in the coming years with most of the substance removed.”
“But what if the Court sustains that law in Mississippi and yet holds back from overturning Roe? We may find the clue in a moment that has slipped the notice of most watchers of the Court. In 1986, when Justice Byron White, one of the two dissenters in Roe delivered a surprise to Justice John Paul Stevens, who had become a firm defender of abortion rights.”
“If the matter is now seen as Justice White had it, the Court could announce that Roe has not been explicitly overruled; that there remains a ‘right to abortion,’ tightly confined; but that it’s open now to governments at every level to scale back Roe dramatically, to protect the unborn child at every point. A judgment of that kind might even ease the mind of many pro-choicers.”
“But it is virtually certain that it would also still be taken in many quarters as the overruling of Roe – and set off conflagrations in the streets of certain cities. The justices then, in sober reckoning, may come finally to this judgment: if there is rioting in the streets whatever we do, we might as well do the full and rightful thing, and remove Roe in one decisive stroke.”
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