According to the Supreme Court, the issue presented by Hobbs is whether any restrictions on abortion in the first trimester can be constitutional. Unlike most recent abortion cases, this is an invitation to revisit Casey and Roe. Few doubt that the current majority on the Court will do so. How far will they go?
As I see it, here are the possibilities:
- Keep Casey and Roe in place, but make their legal standards meaningless: In this scenario, the “undue burden” test is implicitly redefined to permit virtually any kind of abortion restriction.
- Overturn Casey and the trimester balancing test in Roe: Here, the Court decides that the balancing test has no basis in the history and text of the Constitution, but keeps the idea of the right to privacy in place.
- Overturn both Casey and Roe, but keep Griswold in place: There is still a “penumbral” right to privacy, but it doesn’t include abortion, based on originalist thought.
- Overturn Casey, Roe, and Griswold: No more “penumbral” right to privacy! States are free to prohibit contraception as well as abortion.
- Personhood: This is the whole enchilada. The Court not only overturns all of the privacy cases, but finds that a fetus is a person with Fourteenth Amendment protections, thereby effectively banning abortion by judicial fiat in all fifty states without any need for legislation or a constitutional amendment.
What can you expect? Either #2 or #3. I don’t think the majority will be satisfied with #1; #4 would result in a huge political backlash; and #5 is a legal bridge too far, even for this Supreme Court.
So what happens after that? See my next post.