Thread by @stevenmazie

My 4pm radio hit on today's abortion grant was a casualty of CA's mask mandate extension, so here's a bit of what I was going to say. Roe v Wade is in v big trouble, but there is a lot of murkiness ahead. THREAD

https://twitter.com/stevenmazie/status/1394285202571149317

First: there's no reason four justices would vote to hear Dobbs unless they believed it to be a vehicle for eroding abortion rights. There's no circuit split & the MS law is obviously unconstitutional under existing SCOTUS precedent (Roe, Casey).

Second: while Dobbs does not explicitly ask the Court to overrule Casey or Roe, the question on which the Court granted cert implicates the core holding of both precedents—that pre-viability abortion bans are unconstitutional.

Look again at the q: are "*all* pre-viability prohibitions" on abortion unconstitutional?

The rhetorical implication is that "at least *some* bans before 24 weeks *must* be OK, right?"

Four justices would not have granted cert if they thought the answer is "no".

(This point was also made by @tribelaw this afternoon.)

https://twitter.com/tribelaw/status/1394371990115524608?s=20

So....there are really two possibilities.

(1) The Court ends up saying *all* pre-viability bans are constitutional (maybe w/ maternal health and extreme fetal abnormality exceptions).

This approach explicitly overrules Casey & Roe. The abortion right disappears from the Constitution.

-or-

(2) The Court says *some* pre-viability bans are constitutional.

But where to draw a *new* line, after sticking with viability for half a century?

The petitioners say viability is outdated as a bright line btw when women may abort & when state may protect potential life. The two main propositions involve (a) woman's physical & emotional health & (b) fetal pain:

OK, so should the line be drawn at 15 weeks? But the pain evidence says fetuses begin feeling pain as early as 10 weeks. So should SCOTUS draw the line at 10 weeks? That would *radically* curtail abortion rights, as many women don't even know they're pregnant until 8 weeks.

You get the idea: there is no apparent alternative to viability that is any less arbitrary & would save the conservative justices from diving into just the kind of judicial legislation that they say they deplored in Roe. None of the six want to wander into that thicket.

It's extremely tricky, which must be among the reasons the Court took eight months to deliberate on whether and how to take this case.

Another possibility is some new balancing test that keeps the Roe/Casey calculus but puts more weight on the state's interest in fetal life & less on a woman's right to choose without drawing any particular new line. But that would prove equally messy in application.

Justices Thomas and Alito would overrule Roe tomorrow. CJ Roberts would pivot & parry for decades longer if he could. The q is Kavanaugh, Gorsuch & Barrett.

Another q is whether anyone will take the petitioners' invitation to cite *RBG*—yes, that RBG—as an authority in jettisoning the viability standard. That's what they did here in their brief, quoting her dissent in Gonzales v. Carhart (2007). Owning the libs to a new level. /END