Supreme Court's New Supermajority: What It Means For Roe v. Wade

There are two schools of thought: either the right to abortion will be systemically hollowed out, leaving it a right on paper only, or Roe will be overturned.

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For nearly half a century, the Supreme Court has ruled that women have a right to abortion and access to abortion. But now for the first time, there is a new conservative super-majority on the high court, including three Trump appointees. And that may well spell defeat for abortion as a constitutional right. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In 1973, when the Supreme Court handed down Roe v. Wade. The vote was 7-2. But since then, the court's composition has moved inexorably to the ideological right. At the same time, however, public opinion polls have showed large majorities supporting abortion rights in most cases, and those approval ratings have remained remarkably stable over the years. On the Supreme Court, however, the centrist conservatives are gone, replaced by justices more passionately opposed to the notion of a constitutional right to abortion. So the question now is, how fast and how far does the court want to move? Among constitutional scholars, there are basically two schools of thought. Many expect the Supreme Court to systematically hollow out Roe v. Wade but not explicitly overturn it. Professor Josh Blackman predicts the slow evisceration of Roe until the right to abortion is just a right on paper.

JOSH BLACKMAN: So it's like this sarcophagus of Roe that you have the outside tomb, but there's nothing inside, just an empty shell.

TOTENBERG: But NYU law professor Melissa Murray thinks that the time is ripe for anti-abortion forces to strike most forcefully.

MELISSA MURRAY: There is, I think, a galvanizing view within the pro-life movement that the time has come to call the question. Why wouldn't you do it now when you have the 6-3 super-majority?

TOTENBERG: Mallory Quigley, a vice president of the anti-abortion Susan B. Anthony List, says her group is trying lots of different approaches aimed at undermining and ultimately overturning Roe.

MALLORY QUIGLEY: What the pro-life movement is doing is throwing every type of spaghetti at the wall and seeing what sticks.

TOTENBERG: Anti-abortion forces are, in fact, prevailing in many state legislatures, enacting lots of different laws that restrict abortion. As of now, there are four cases challenging those laws pending before the Supreme Court and more than a dozen cases pending in the federal appeals courts. Among the different restrictions are bans on abortions at early stages of pregnancy, with six states banning abortions after six weeks. That's before many women even realize they're pregnant. Then, too, there are bans on the most common method of surgical abortions. There are laws making it more difficult to obtain medical abortions using pills. There are laws making it illegal to terminate a pregnancy because of fetal abnormality, and there are laws that make it difficult to impossible for clinics that perform abortions to remain open. Abortion rights lawyers like Stephanie Toti know they're facing an uphill battle.

STEPHANIE TOTI: Roe v. Wade has been settled precedent for nearly 50 years. And yet, everybody thinks that we might be on the cusp of that precedent being overturned. And so I think it's really important to keep up the fight.

TOTENBERG: If the direction the conservative court is going on abortion is clear, less clear is how the conservative justices will get there. NYU's professor Murray points to an idea promoted in an opinion written by Justice Clarence Thomas, which sought to link Planned Parenthood, contraception and abortion to the racist views of the eugenics movement in the early 20th century. Though Thomas wrote for himself only in that case, Murray notes that other conservative justices last year adopted a similar approach in striking down laws permitting non-unanimous jury verdicts because of their racist roots. And she suggests that may be laying the groundwork for a new approach to overturning Roe.

MURRAY: What could be better than to take down Roe on the grounds that it is not just wrong in terms of your moral view of where life begins, but it's wrong because it's about racial injustice.

TOTENBERG: Indeed, those opposed to abortion already use the phrase anti-discrimination laws to refer to laws that ban abortions based on fetal abnormality.

Nina Totenberg, NPR News, Washington.

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