Dahlia Lithwick at Slate wrote an extremely detailed analysis of why pro-choice activists seem stalled when it comes to challenging anti-choice state legislation that is chipping away at legal rights granted by Roe V. Wade. The end result, she concludes:
…is that Roe remains on the books, while for all practical purposes women can’t get an abortion in Ohio, North Dakota, or Florida. I suppose you can call it half a loaf, but then, having half a loaf only really works if you are sort of pregnant.
There’s one other (often forgotten) player in this elaborate game of chicken over reproductive rights, and that’s the Supreme Court. Given that public opinion has changed virtually not at all since Roe v. Wade, my guess is still that the Roberts court is as uninterested in overturning the law as its challengers are in forcing the issue. It does not want to be the court that makes abortion illegal, or all-but-illegal, in America. The backlash would be staggering. The conservatives on the court are much happier with the status quo, allowing abortion as a matter of federal law while the states effectively outlaw it as a matter of fact. If the states continue to hollow out Roe from the core, there will be no reason for the court to hear an abortion case ever again.
But Lithwick isn’t the only one proposing that the Roberts court has absolutely no desire to overturn Roe V. Wade. In fact, despite all of the anti-choice laws being flung at it, allegedly to try and drum up a challenge that can make it to the high court, one lawyer familiar with anti-abortion legal issues believes that these cases could likely reaffirm the ruling, not invalidate it.
Lawyer Paul Benjamin, writing a letter to a North Dakota newspaper about the state senate refusing to vote on an all out statewide abortion ban, pens an eloquent argument for why anti-choice activists need to tread lightly until they are certain they have a full majority of the court on their side.
[C]ontrary to the views of some, there is no reason to believe that Justice Anthony Kennedy, who co-authored the joint opinion in Casey, would vote to uphold a ban on abortions before viability. He reiterated the viability rule in his dissent in the first partial-birth abortion case, Stenberg v. Carhart, 530 U.S. 914 (2000), and in his majority opinion for the court in the second partial-birth abortion case, Gonzales v. Carhart, 550 U.S. 124 (2007). In the former case he said, “Nebraska must obey the legal regime, which has declared the right of the woman to have an abortion before viability.” (Emphasis added.) In the latter case, he acknowledged that the federal Partial-Birth Abortion Ban Act would have been unconstitutional if it had prevented pregnant women from obtaining second-trimester abortions.
Although it is unlikely that the Supreme Court would preview an abortion ban like HB 1450, if it did, it would strike it down. It is not in the interest of the pro-life movement to have Roe reaffirmed yet again, nor is it in the interest of the pro-life movement to force Chief Justice Roberts and Justice Samuel Alito to declare themselves on whether Roe v. Wade should be overruled before a majority of the court is ready to overrule Roe.
As Lithwick states, perhaps it is time to put this to the test.