“Red Teaming” Reversal of Roe v. Wade

In the military, “red teaming” is thinking like your adversary, looking forward, imagining contingencies, taking steps to prepare for what could be. The concept works elsewhere. Imagine Roe v. Wade reversed this year. What happens next?

The short answer is – a lot. On the merits, a case entitled Dobbs v. Jackson Women’s Health Organization was argued at the Supreme Court in December 2021. How it turns out will likely be decided in June, five months before the 2022 elections.

Question posed: whether a Mississippi law prohibiting abortion after 15 weeks, technically prior to 24-week “viability” standard, is constitutional. 

Why would such a state law not be constitutional? Because in 1973, the High Court in Roe v. Wade “found” a constitutional “right” to abort a baby if not “viable” outside the womb.

Roe’s legal reasoning was questionable even in 1973, reversing dozens of state laws, triggering a flood of follow-on challenges, objectively seen as convoluted.

The notion that the 14^th Amendment, ratified in 1866 and focused on post-Civil War America – applying federal due process and equal protection rights to states – had something to say about abortion was a stretch.

Still, pro-abortion groups celebrated the ruling, while mainstream media, legal experts, and pro-abortion pundits pumped up the idea that this was obvious.

Of course, it was not obvious, and as Justice Sandra Day O’Connor (first women on the High Court) noted, the decision was on a collision course with itself. As technology continued to press the age of “viability” backward, toward time of conception, Roe’s impact would diminish.

More to the point, the case was written in sand. The legal reasoning, imagining a “penumbra of privacy” magically dancing within the 14^th Amendment’s “due process” protection, or invisibly within the 9^th Amendment, which talks vaguely of a need not to “disparage” rights “retained by the people,” was tenuous.

That became more obvious in Planned Parenthood v. Casey in 1992, a bizarre, tortured plurality opinion, with 16 different conjoined sub-opinions melded into what scholars concluded was a messy way of upholding Roe.  

What Casey did was change the standard for identifying when restrictions on abortion – by a state – were okay, and when they were not. They applied a new test, called the “undue burden” test:  To be constitutional, the restriction had to not be too “severe” and be “rational” or tied to a “legitimate state purpose.” 

If all this sounds complicated and somewhat subjective, it is both. That is one reason that pro-abortion groups are terrified of the High Court relooking Roe and Casey. Both decisions are “iffy,” becoming harder and harder to defend legally, with time.

The reality is, as most quietly understand, legal decisions can be infected with a touch of politics. The “separate but equal” idea that sought to explain away the injustice of racial segregation was infected by politics. So was Roe, in 1973.

All this leads to one conclusion:  Roe may be rethought and rejected, after review. The reasoning may be found faulty, from outset. The idea of either “viability” or an “undue burden” elevating abortion to a constitutional right may stumble.

If Roe is reversed, in a tight, legally and textually anchored opinion, what happens next?

First, notwithstanding Roe was a split decision (7-2), political critics will say the judicially conservative (i.e., textual) majority is using a political standard to reverse the previously activist High Court, when it reverses Roe.  

Political actors will come out of the woodwork – some are already planning – to claim the High Court has lost legitimacy, cannot overturn a prior decision, and is just wrong. They will say this legal review was political, anti-woman, anti-precedent, and cannot stand.

Of course, all this is nonsense. Real judicial review is premised on hard legal standards, not politics. The High Court has generally had 50 percent or higher popularity in Gallop polls, while Congress – where critics abound – has 20 percent approval. See, e.g., Congress and the Public; Supreme Court. And old cases, as well as newer ones, are regularly revised, refined, and overturned.

Nor is a decision that protects millions of unborn children who are distinctly female, who will grow to become women if allowed to live, anti-woman. And roughly half the country is “pro-life,” with breakdowns varied. See, e.g., “Pro-Choice” or “Pro-Life,” 2018-2021 Demographic Tables.

Finally, back to “red teaming,” what are the likely actions which might follow a reversal of Roe v. Wade in Dobbs v. Jackson? Several, and they are serious. 

Some Democrats in Congress – and even Biden – have called for “packing” or making political the High Court, adding justices that are liberal to reverse the law.

Some have begun undermining the legitimacy of the institution, impugning individual justices, potentially placing them at risk or in harm’s way.

Some congressional Democrats have called for a “revolution” (perhaps some sort of “insurrection” at the Supreme Court?) or for making the majority “pay the price” for their decision. Both calls are irresponsible and came from Senate Democrats. See, e.g., Dem Senator warns Supreme Court of ‘revolution’ if Roe v. Wade overturned; Schumer warns Kavanaugh and Gorsuch they will ‘pay the price’.

Truth is, as so often it is, simple:  A bad decision, a case relating to abortion, will be reviewed by reference to the Constitution, balancing fresh reasoning against precedential value. 

The outcome will likely tip away from bad reasoning, toward a reversal of Roe and Casey, in a new case – Dobbs – that will define the future. Being ready for that ruling, and what may follow the ruling, is probably wise. “Red teaming” is timely.