E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein

If the Supreme Court overrules Roe v. Wade and Planned Parenthood v. Casey, abortion-restricting trigger laws in at least 12 U.S. states will automatically take effect immediately upon that decision without those states needing to pass new legislation.

“there are already, you know, at least a dozen, if not more states that have what's called trigger laws that have already been passed by the state legislature with an eye towards this decision or some other decision by the Supreme Court overruling Roe and Casey so those states wouldn't even have to pass new laws. Those laws restricting abortion would go into effect immediately.” View on YouTube

By the end of June 2022, the Supreme Court will issue a decision in the Dobbs case in which a 5–4 majority of justices votes to overturn Roe v. Wade.

“they have marched forward from that position, where they were losing 7 to 2 in the Supreme Court till June of this year, where they will likely win a 5 to 4.” View on YouTube

Following the leaked draft indicating Roe v. Wade will be overturned, conservative state legislatures and attorneys general will significantly increase their efforts over the subsequent years to pass and enforce laws testing previously settled constitutional issues (including abortion and LGBTQ-related rights) and to bring new test cases up to the Supreme Court.

“this is going to be extremely motivating and extremely animating to conservative legislatures, to conservative attorneys general in the states. Everything's now in play. It's let's go, uh, let's give it a shot. Let's take it up to the Supreme Court. It can't get worse from the conservative perspective. They've already lost on some of these issues.” View on YouTube

Approximately eight weeks after the early-May 2022 leak of the Dobbs draft opinion (i.e., by late June or early July 2022), the Supreme Court will issue a final decision that eliminates the federal constitutional right to an abortion recognized in Roe v. Wade, returning primary authority over abortion regulation to legislatures.

“I'm telling you, in eight weeks you don't have a right to an abortion anymore.” View on YouTube

The U.S. Supreme Court will not overturn the constitutional right to same‑sex marriage or the constitutional protections related to contraception; no national legal regime outlawing contraception will emerge.

“So I just don't buy this idea that now we're going to be overturning gay marriage, that we're going to be overturning, like, for example, contraception. I just don't buy it. Why? Because nobody in the country is arguing for outlawing contraception.” View on YouTube

In the then-pending Supreme Court case on affirmative action in higher education, the affirmative action policies will be struck down by the Court.

“we mentioned this in the context of this and affirmative action, as you know, two things that were going to get challenged and would probably lose. And unfortunately, it turns out we're right on one and it looks like we you know, we may be right on the other as well because I think the affirmative action case will get will get.” View on YouTube

There remained, as of May–June 2022, a possible outcome in which Chief Justice Roberts would secure one additional vote to uphold Roe v. Wade while simultaneously modifying it to permit restrictive state laws such as Mississippi’s 15‑week ban.

“So let's assume that this is the decision. By the way, it's still possible that Roberts could peel off a vote, and then we would get a scenario in which Roe is upheld while modifying it to allow, you know, laws like the Mississippi law.” View on YouTube

If Roe v. Wade is overturned along the lines of the leaked Alito draft, Democrats in Congress will attempt to codify Roe in federal law, but that effort will fail because they will not obtain the votes needed to overcome or eliminate the Senate filibuster; thereafter, abortion policy will default to state control.

“What that will mean is then, like Tom said, we'll have a vote in Congress. The Democrats will see if they can basically uphold Roe by through a law which Biden would then sign. I think the issue there is they have to get enough votes to break the filibuster, and I don't know if they're willing to do that. So let's assume that fails. Then it goes to the states.” View on YouTube

Following a decision overturning Roe v. Wade, roughly half of U.S. states (around 25, mostly blue) will see little or no change in abortion access; in about 12 states with trigger or pre‑existing restrictive laws, substantial restrictions or bans will immediately take effect; and in approximately 12–13 remaining purple states, abortion policy will become a major contested issue and legislative battleground.

“So right off the bat, let's say in about half the states, 25 of them or so, I don't think there's going to be a change in about 12 states. These restrictions that are already on the books are going to go into effect, and then we're going to have about 12 or 13 states that become battlegrounds, um, purple states basically.” View on YouTube

In the post‑Roe environment, state-level politicians who adopt abortion positions aligned with the median voter in their states (rather than absolutist positions) will gain electoral advantage over time.

“I think where this will go is, I think politicians who figure out where the center is and figure out where most of the people in their state are, are the ones who are going to benefit.” View on YouTube

In states where abortion policy becomes contested after Roe is overturned, politicians who support abortion bans without exceptions for rape and incest will be electorally punished by voters.

“if the pro-life side refuses to make compromises for, say, rape and incest, they're going to be punished by voters in those states.” View on YouTube

Politicians in either party who maintain absolutist, no‑compromise positions on abortion in the post‑Roe legislative battles will tend to lose elections relative to those who compromise.

“And if the absolutists in both parties refuse to do that, I think they're going to lose elections.” View on YouTube

After Roe is overturned, U.S. states will independently construct varied abortion-law frameworks (differing on issues like rape and incest exceptions, on‑demand access, and gestational‑week limits), resulting in significant legal and practical chaos around abortion access for several years.

“So a possible outcome is states starting to build their own framework in terms of rape, incest, on demand, on request versus a certain number of weeks. Uh, and that is just going to be an absolute amount of chaos for some number of years.” View on YouTube

If the Republican Party adopts a no‑compromise stance on abortion (e.g., opposing rape and incest exceptions), it will not replicate recent broad electoral successes such as Glenn Youngkin’s 2021 Virginia gubernatorial win; instead, it will face voter backlash.

“if the parties don't compromise on this, voters will eventually punish them. I mean, I don't think you're going to see, um, you know, Glenn Youngkin like victories by the Republican Party if they brook no compromise on, for example, the issue of, you know, rape and incest.” View on YouTube

Overturning Roe v. Wade will cause the Republican Party to incur a broad and substantial long‑term political cost (e.g., in elections and public support) across the country.

“I think that's the Republican Party is going to just pay such a massive price for this. Um, broadly, I mean, is this a case where, like, the dog catches the car, bites the fender, and is now like, oh my God.” View on YouTube

The U.S. Supreme Court will not overturn Obergefell v. Hodges, and same‑sex marriage will remain constitutionally protected.

“I don't think Obergefell is going to get overturned. I just don't see it.” View on YouTube

Had the Supreme Court recognized a right to same‑sex marriage in the early 1990s, it likely would have triggered the passage of a federal constitutional amendment banning same‑sex marriage (a counterfactual historical prediction).

“if the Supreme Court had basically taken up the issue then and found a right to gay marriage, we might have had a constitutional amendment banning gay marriage by now” View on YouTube

To remain electorally viable in coming election cycles, Republican politicians will be compelled to support abortion being legal under some circumstances and to reject a position of illegality in all circumstances; those who insist on total illegality will generally fail to win office.

“Translated, Republicans are going to have to fall into this bucket of legal under certain and they're going to gonna not listen to illegal at all, because that that means they'll just be so disconnected from the reality of American life in 2022. They will not get office.” View on YouTube

The U.S. Supreme Court will neither overturn major precedents on same‑sex marriage and interracial marriage nor grant certiorari to directly hear challenges seeking to overturn those decisions.

“Right. But I don't think the Supreme Court is going to overturn those other cases. I'd just be shocked. I don't even think they will take those challenges up.” View on YouTube