The way Berkeley Law Dean Erwin Chemerinsky sees it, abortion rights in the United States are about to take a beating.
Chemerinsky, an expert in constitutional law, criminal procedure and federal jurisdiction, says the five conservative U.S. Supreme Court justices — John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — are eager to strike down Roe v. Wade, the landmark decision that protects a woman’s liberty to choose whether to have an abortion.
Recent controversial anti-abortion laws — including Alabama’s law to make abortion a felony in nearly all cases, with no exceptions for instances of rape or incest — have only served to energize the fervor to restrict reproductive rights.
“Overturning Roe has been a key part of the conservative movement since 1973,” Chemerinsky says. “You now have five justices who grew up as part of this movement. They are not going to resist the chance to do that.”
A Marist poll cited by Axios in February found that 80 percent of Americans support abortion when it is limited to the first three months of pregnancy. That fact won’t be a factor in the court’s decision, Chemerinsky says.
“For 45 years, conservatives have believed Roe v. Wade was wrongly decided,” he says. “All five of the conservative justices are part of that movement. I don’t think precedent or public opinion will matter in the least to them.”
Chemerinsky says Roe could be wiped away by one of two Supreme Court strategies: one swift blow by upholding the new Alabama anti-abortion law, or one very much like it. Or, Roe v. Wade could be eliminated by a series of Supreme Court decisions that would whittle away at abortion protections by upholding less restrictive anti-abortion laws signed by other states.
Between 2010 and 2018, 33 states passed anti-abortion laws — more than 400 in all. Chemerinsky says lower courts will follow precedent and rule most of those unconstitutional. The Supreme Court can choose to hear any of those cases.
For decades, the Supreme Court has relied on precedent to guide its rulings, which would seem to be in favor of upholding Roe v. Wade. But, as Chemerinsky can attest, precedent isn’t what it used to be.
In January, he argued before the Supreme Court on behalf of wealthy computer chip inventor Gilbert Hyatt in Hyatt’s long-running battle with the California Franchise Tax Board. Hyatt had moved from California to Nevada, and in 2003 sued California for intrusively auditing him. After Hyatt’s initial victory, California spent more than a decade appealing, the case twice previously making it to the Supreme Court without California getting a win.
The Supreme Court decision earlier this month finally went California’s way, with the court saying states are immune from private suits filed in other states’ courts.
“I was arguing for the Supreme Court to follow a precedent from 40 years ago,” Chemerinsky says. “The court ruled against my client. It was a 5-4 decision that got a lot of attention. Justice (Stephen) Breyer wrote a dissent in which he said there should be a reason for overruling precedent other than (that) the majority just disagrees with the ruling from 40 years ago.
“He explained why precedent matters, and he concluded by saying, `We can only imagine what precedent is going to come next and be overruled.’”
Breyer, considered left of center on the court, didn’t write about Roe v. Wade explicitly, but it seems likely to Chemerinsky that Breyer had it on his mind.
“The Alabama law is clearly unconstitutional,” Chemerinsky says. “And it’s what’s next. Whatever federal district court, whatever (U.S.) Court of Appeals, hears it would have to declare it unconstitutional. Now, that doesn’t mean that the court will have to take the case. It could be that the lower courts declare it unconstitutional, and the (Supreme Court) decides not to take this (Alabama) case.”
That might offer faint hope to pro-choice advocates. Chemerinsky says it is all but inevitable that one or more anti-abortion laws from other states eventually will be heard by the Supreme Court.
“The court will probably uphold a law like Indiana’s that prohibits abortions for reasons of race or sex or disability of the fetus,” Chemerinsky says. “But it would likely stay away, for a time, from the most clearly unconstitutional laws, the ones like Georgia’s that would prohibit abortion at six weeks of pregnancy, the fetal heartbeat laws or Alabama’s.”
The last abortion case to make it to the Supreme Court was Whole Woman’s Health v. Hellerstedt in 2016. If enacted, that law would have closed most of the facilities in Texas where abortions can be performed. The court ruled it unconstitutional by a 5-3 vote. Former Supreme Court Justice Anthony Kennedy, who has since retired, is no longer around to provide a fifth vote in favor of upholding precedent, Chemerinsky says.
In states such as California and New York, abortion will remain legal, he points out.
“Abortion will become illegal in about half the states,” he says of the possibility that the Alabama anti-abortion law or one like it is upheld by the court.. “And women who have resources will be able to travel to those other states for abortions. For women who don’t have those resources, for teenagers, they are going to have the illegal, unsafe abortion or the unwanted child.”
Asked if pro-choice lawyers could make a case that anti-abortion laws effectively are discriminatory because they attack the poorest and weakest, Chemerinsky doesn’t hold out much hope.
“No, unfortunately that’s not an argument that the (Supreme Court) is going to accept,” he says. “It’s the reality, though. The reality is that prohibiting abortion has a disproportionate effect on poor women and teenagers, but it’s not an argument that the court is going to give any weight to.”