Let me offer a prediction, free of any face-saving hedge: Next year, the Supreme Court will hold that there is no constitutional right to elective abortions. In Dobbs v. Jackson Women’s Health Organization, a case pending before the court, it will return the issue to the states for the first time in forty-nine years. It will do so explicitly, calling out by name, and reversing in full, the two major cases that confected and then entrenched a constitutional right to elective abortion: Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). And the vote will be six to three.
Why do I think so? I have no inside information. I know most of the Justices, but I would never ask what they intend to do in a case, and I’m sure none would tell me if I did. But it’s widely thought, and I myself believe, that six of the Justices believe Roe and Casey to be grossly unfaithful to the Constitution and unjust. None will want to entrench those precedents. The question observers debate is whether some of the six might prefer merely to chip away at those precedents. The reasons for this gradualist approach would be to avoid making the Court seem politically motivated and to avoid drawing the Court further into political fights (by, for example, empowering a push for court-packing).