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“Mississippi’s attorney general urged the Supreme Court in a Thursday brief to overrule Roe v. Wade next term when the justices review Mississippi’s ban on virtually all abortions after 15 weeks of pregnancy,” The Hill reported on July 22, 2021.

“Calling the court’s precedent on abortion ‘egregiously wrong,’ Attorney General Lynn Fitch (R) explicitly set the dispute over Mississippi’s restrictive law on a collision course with the landmark 1973 decision,” The Hill said. Read story here.

Law students are taught that although precedents are binding, there’s a certain limited amount of wiggle room to ask courts to modify or overturn them. You can’t ask courts to throw out a precedential decision because you don’t like it; that’s not good enough. You need a well-reasoned argument. Two common reasons given for overturning precedents are (a) the decision was wrongly decided, or (b) society has changed and the law should change with it.

The latter helps explain the Roe v. Wade decision. For generations, abortions were illegal in the U.S., but the prohibition wasn’t working, society had become more tolerant of them, and women were demanding more freedom. To some extent, the 1973 decision simply recognized the reality of what was already happening in the larger society outside the courtroom, and would continue to happen no matter what the court decided.

Fitch’s argument that Roe v. Wade was wrongly decided isn’t based on religious beliefs or moral arguments. Rather, her brief (here) challenges the premises underlying the Roe v. Wade court’s reasoning. I’ll come back to this below.

I don’t think a religious or moral argument would, or should, carry the day for abortion opponents, because that involves imposing some people’s beliefs on others, and that’s not how we generally do things in America. A better argument, in my opinion, is that Roe v. Wade just isn’t very good as Supreme Court decisions go.

That is, the abortion part isn’t. There’s two parts to Roe v. Wade, the privacy part and the abortion part. The Constitution doesn’t explicitly create a privacy right. In finding such a right implicit in other constitutional rights, the court’s reasoning seemed to me airtight; I thought that part of the decision is very good. (But Fitch isn’t deferring to it; she’s making a frontal assault against it. Her brief argues there’s no constitutional right to privacy. I think that’s weak.)

But in reading what follows — the process of concluding that a derivative right to abortion flows from the privacy right — you might get a sense that the Roe court lost its bearings, was muddling through, and didn’t know quite what to do. The Roe v. Wade opinion says outright that of all the disciplines the justices considered, none really offered an answer to the question before the court. The court’s ultimate conclusion — that abortion is a constitutionally-protected privacy right — comes across as a default conclusion for lack of a better one. That’s weak.

So, if instead of arguing that Roe v. Wade is bad law, Fitch argued it’s weak law, she’d be on solid ground. But that doesn’t get her across the goal line. Weak law is still better than bad law, or no law. If Roe v. Wade‘s conclusion on abortion is to be replaced with a different conclusion, then its reasoning on the question has to be replaced with other reasoning, and doing so with worse reasoning isn’t very beneficial to the court’s institutional interests, such as public respect for the court and its rulings.

Just what that better reasoning may be isn’t, I don’t think, that Jane Doe’s abortion offends Sally Smith’s sensibilities. So what? Jane’s decisions about her body are none of Sally’s business. (This same logic applies to someone in Kansas feeling put out by a gay couple getting married in Vermont.) Even the argument that abortion is “murder” isn’t very persuasive, at least not in the early stages of a pregnancy; a fertilized egg, or a few-weeks-old embryo, is not a formed human being except in some people’s imaginations. But this leads us into a great conundrum, and the hardest problem the Roe v. Wade court had to solve, namely, how do you define “human being”?

The question is pertinent, because we’re all against killing babies. To get around this, abortion supporters make a distinction between “fetus” and “baby.” To support their position and give it moral force, abortion opponents refuse to recognize that distinction. However, because it’s very difficult to logically cast a fertilized egg or early-stage embryo as a “human being,” and the Roe v. Wade court declined to do so, it becomes necessary to draw a line between “fetus” and “baby.”

The Roe v. Wade court gave up trying to reason its way to a clearcut dividing line, because there obviously isn’t one, and opted for making the distinction arbitrarily. The default answer is, unborn is “fetus,” and born is “baby.” In subsequent decisions, this line blurred, as the Roe v. Wade justices’ successors accepted some limitations on aborting late-term fetuses bearing more resemblance to “human beings” than early-term fetuses do.

Here again, though, the Roe v. Wade decision and its sequels resorted to drawing arbitrary lines, by falling back on the simplistic stratagem of dividing gestation into “trimesters.” In other words, abortion restrictions became more acceptable if imposed during the third and final trimester; and abortion opponents sought to push those restrictions, first, into the second trimester, and eventually even into the first trimester. At some point, the concept of “viability” (i.e., a fetus’ ability to live outside the womb) entered the picture (and arguments), but “viability” was, in my opinion, never more than a rationalization.

Courts have to be pragmatic. Their decisions have to be workable in the real world. In fact, one of Fitch’s arguments is that Roe v. Wade has proved “unworkable” (in her words). So let’s consider the practical consequences of reversing Roe v. Wade. If the court, as reconstituted by McConnell and Trump, decides a “fetus” is a “baby” after all, and abortion is murder, then you probably get a decision saying a fertilized egg has a constitutional right to live, and can’t be deprived of this right without due process, even though the egg has no clue it exists and no idea of what’s going on.

The court, in my thinking, is more likely to wash its hands of the conundrum and dump it on the states, perhaps clothing this dodge in “states’ rights” language. In other words, blow away the federal constitutional right to an abortion and let state legislatures decide whether to legalize it or not. This is what Fitch appears to be asking for. It would create a system where abortion is legal in some states, but illegal in other states.

That may satisfy the Mississippi legislature, but it won’t satisfy right-to-life activists, who want to ban abortion everywhere. If the Supreme Court delegates legality to the states, I can see this creating an unholy mess. Instead of taking care of essential business like funding schools and road repairs, legislatures will become bogged down with never-ending abortion fights. That’s not an outcome we should want. Roe v. Wade moved those fights out of legislatures and into courts.

That’s the biggest problem I see with overthrowing Roe v. Wade: That the abortion fights will go on, and on, and on.

But there’s also a practical reason why the court might hesitate to uphold the particular Mississippi law: While it allows an exceptions to save the life of the mother, it makes no exception for rape or incest. Compelling a rape victim to deliver the rapist’s child likely means she will have to deal with, and face, the rapist for years to come in child support, custody, and visitation proceedings. And if the rapist isn’t prosecuted or convicted, he’ll likely get visitation rights, which means the rape victim may have to see him and hand the child over to him weekly or biweekly for years to come. Allowing a law with such results to stand very likely would earn the court severe criticism.

But it might. People tend to assume the #1 goal of our legal system is a “justice.” That’s not quite right. Our legal system isn’t that idealistic. Its primary function, and what makes it essential and explains why it’s funded, is to settle disputes so society can function. Never-ending fights are grit in the cogs of societal machinery; they have to be put to rest so people can go about their other business. That’s why we have a legal system. And that’s the strongest argument for leaving Roe v. Wade intact: Not because it’s a moral decision, or the right decision, but because it settles the dispute and everybody knows where they stand in relation to that dispute.

The political pressures to overturn Roe v. Wade are very great. The majority of current justices know that’s why they were put on the court. But the potential political blowback also is very great; polls consistently show large majorities of Americans support legalized abortion, although public sentiment isn’t static, as shown by this poll taken about a month ago:

“A majority of Americans broadly believe abortion should be legal and more than 60% believe people should be able to obtain abortions during the first trimester of their pregnancy, a new Associated Press/NORC poll finds—but support for abortion being legal drops significantly as the pregnancy continues, an issue that will soon be taken up by the U.S. Supreme Court.”

The Supreme Court isn’t immune to the political currents in larger society; remember, that’s a major part of why Roe v. Wade’s constitutional right to abortion was conjured out of logic only slightly thicker than thin air in the first place. For this reason, and also because of the court’s institutional fidelity to precedent, and because the justices may wish to avoid creating legislative chaos, I think there’s a significant likelihood the court will pare back the abortion right without rescinding it altogether.

It won’t surprise me if they expostulate that the Roe v. Wade court wasn’t wrong, per se, but new and improved reasoning leads to a conclusions the abortion right isn’t as expansive as originally decided. Fitch and her cohort may even get most of what they want — in Mississippi. And quite possibly the pro-choice people could live with that if they can still sojourn to Washington and other abortion-friendly states to terminate their unwanted pregnancies.

But legal purists who want to see a well-reasoned opinion, driven by logic instead of politics, probably will be disappointed no matter what the court does. The issue is just too much of a hot potato to produce great jurisprudence. It didn’t the first time, and almost certainly won’t this time, either.

Addendum: For a nuanced discussion of the Mississippi case and past abortion litigation, see the Vox article here.

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