Roe is Dead, Long Live the Courts: The Role of Courts in a Post-Roe America

• In Event: Gender, Sexuality, and Constitutional Equality

Abstract

Roe v. Wade (1973) may not make it to its 50th birthday. In the last months of 2021, the Supreme Court seemed receptive to increased restrictions on abortion, leaving the Texas Heartbeat Act in effect and indicating that Mississippi's abortion ban after 15 weeks may be constitutional. Given the composition of the Supreme Court, Roe seems likely to be overturned in the near future. In the wake of these recent cases, a flurry of news articles have speculated on what a post-Roe America would look like. The predictions range from an abortion wasteland and forced gynecological exams to a less polarized national politics and a national patchwork of abortion policies. Regardless of whether a post-Roe America would be a pro-choice hellscape or a pro-life paradise, the commentators agree on one thing—that a post-Roe future will be a post-judicial future. Once Roe is overturned, the consensus is that the abortion fight will leave the courtroom and enter the halls of state legislatures. However, a post-Roe future is only a post-judicial one if legal advocacy only matters inside of the courtroom. Conversely, the dispute centered approach to legal analysis argues that legal advocacy matters both inside and outside of the courtroom. Legal decisions communicate valuable information that reshape perceptions of what legal and moral claims are actionable. Thus, legal advocacy can transform social movements outside of the courtroom through everything from threatening litigation to aid negotiations to rights consciousness raising amongst activists. Using the dispute centered approach, this article will argue that legal advocacy is simply too great of a resource for the pro-choice and pro-life movements to abandon. Novel legal arguments present opportunities to mobilize activists by transforming understandings of what claims are actionable and of abortion itself. The dispute centered approach examines the effects of legal advocacy outside of the courtroom in part by understanding its surrounding context. Therefore, to build the case that a post-Roe future will still involve legal advocacy, this article will examine the conditions conducive for new legal advocacy over abortion to emerge. First, the right political conditions need to exist. Courts are the option of last resort. Activists use litigation when attempts to affect social change through other means fail. As a result, for litigation to remain a viable option for relief, hostile legislative environments within less hostile judicial environments must exist. To assess whether a hostile legislative environment exists, this article will use the Guttmacher Institute's ordinal ranking of state abortion policies and state-level survey data on abortion from the Religious Landscape Study. To assess whether the judicial environment is less hostile to advocates than the legislative environment, this article will use attitudinalist measures of circuit court decisions and recent abortion decisions from the circuit courts to measure how liberal or conservative a court is perceived to be on abortion policy. Second, legal arguments with the potential to mobilize social movements need to be available. A post-Roe future presents an opportunity for the pro-choice movement to mobilize activists by embracing equality discourse. The pro-choice movement has the opportunity to shed the rights discourse of Roe and embrace the argument, developed over the past 30 years in part by Ruth Bader Ginsburg, that abortion is an essential part of women's equality and thus protected under the Equal Protection Clause. Conversely, a post-Roe future presents an opportunity for the pro-life movement to mobilize activists by arguing for a constitutional right to life and adopting their own rights discourse. Hostile political circumstances and less hostile judicial circumstances drive activists to seek out the courts for relief and novel legal arguments give them the tools to use in court. Novel legal arguments in the wake of Roe will likely initially be met with defeat, but novel legal arguments can achieve early success outside of the courtroom. Legal advocacy has "political meaning independent of its success or failure in the courts." (Schneider, 1986, p. 589) What matters most is not whether novel legal arguments will translate into legal victories, but whether novel legal arguments can mobilize activists and transform social movements by changing perceptions of what is politically possible. Even if novel legal arguments fail in court, they may succeed on the streets. In a post-Roe America legal advocacy will still play an important role both inside and outside of the courtroom, it will just not involve Roe and a right to privacy anymore.

Author

• Laura Erika Jenkins, Syracuse University