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Sweeping Roe v. Wade Decision? Not Roberts' Style

Analysts think his Supreme Court more likely to 'chip away' than overturn
By John Johnson,  Newser Staff
Posted May 16, 2019 11:15 AM CDT

(Newser) – As several states move to restrict abortion—including Alabama and now Missouri, per CBS News—the big question is whether these new laws will lead to a direct challenge at the Supreme Court to overturn Roe v. Wade. But one common theme in coverage is that Chief Justice John Roberts prefers a more incremental approach, suggesting his court is more likely to "chip away" at the right to abortion, rather than overturn it in one sweeping decision, writes Adam Liptak in the New York Times. Details:

  • His usual way: Roberts has used a "step-by-step approach" in other big cases that have moved law to the right, including decisions on Citizens United and the Voting Rights Act, writes David Savage in the Los Angeles Times. Roberts "has typically resisted moving quickly to decide major controversies," and that will likely be the case now, especially with an election less than two years away.

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  • Instead: "Because the Roberts court tends toward incrementalism, it is not likely to want to take on a direct confrontation" with Roe v. Wade, writes Liptak. But the court will have ample opportunities to rule on laws that could further erode abortion protections. For example, a court decision on a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital could come down in the summer of 2020 in the heat of the election season, notes Chris Cillizza at CNN. The court also might hear challenges to Indiana laws on the disposal of fetal remains and waiting periods after ultrasounds.
  • Ways away? Legal analyst Joan Biskupic amplifies all of the above. "Direct challenges to the 1973 milestone are years from any Supreme Court hearing, and advocates on both sides are more urgently strategizing over the pending cases that would establish the terms for the eventual showdown," she writes at CNN.
  • Down the road: At Vox, Scott Lemieux sees the recent developments as bad news for advocates of abortion rights on two fronts. In the short term, it seems likely that many states will have laws in place to make abortion "almost or entirely inaccessible." Longer term, he thinks the Supreme Court "will have to face Roe head on, and it's overwhelmingly likely that it will overrule Roe if Roberts is the median vote—and a near certainty if a Republican president can replace Justice Ruth Bader Ginsburg or Stephen Breyer."
  • But in Vermont: State lawmakers are working on a constitutional amendment that would protect a woman's right to an abortion. PBS has a report on that as part of the larger debate unfolding.
(Read more abortion stories.)

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