The Right-Wing Supreme Court Is Coming for Roe v. Wade

Precedents are falling, and with state legislators eating away at any middle ground, it’s probably time to worry about Roe v. Wade.

On Monday, the Supreme Court made a monumental decision on a fairly bland case. In ruling on Franchise Tax Board of California v. Hyatt, the Court’s five conservatives overturned the precedent set by the 1979 decision Nevada v. Hall, in which the Court established that individuals can sue a state in a state court outside of the defendant state. The example in this long-winding case was millionaire Gilbert Hyatt’s legal fight against the state of California’s Franchise Tax Board; until Monday, the courts had honored Hyatt’s ability to sue the state via Nevada’s courts.

But in the majority opinion penned by Justice Clarence Thomas, the Court’s conservatives decided to side with the state board and dump four decades of precedent, declaring that states have sovereign immunity from private lawsuits brought against them in state courts outside of their own.

In dismissing Hall, Justice Thomas—he loves breaking precedent—spent just three paragraphs explaining his constitutional reasoning, ultimately concluding that the 1979 ruling, “failed to account for the historical understanding of state sovereign immunity.”

That is not the news, not the news that matters anyways. The reason this is important is found in the Court’s decision to forgo precedent simply because they don’t personally agree with it. No legal loopholes were deployed, and no grand research effort was undertaken to disqualify Hall. Thomas and his fellow conservative cohorts simply disagreed with the precedent-setting ruling, finally had the votes to change it, and did just that.

As Justice Stephen Breyer wrote in his dissent, there now exists a very real possibility that such a decision being made—without a specific prior case or constitutional issue cited—will give way to other precedents being overturned. Given he cites from Planned Parenthood v. Casey in his dissent, this paragraph is as close to a Justice ringing the warning bell for Roe v. Wade as one can get.

To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay.

In recent months, state governments have begun outlawing abortions in practice by drafting and passing a recent rash of what are known as “heartbeat bills,” which make abortions following the presence of a fetal heartbeat illegal. As the Associated Press pointed out this morning, four states have such legislation in place, and three more are on the cusp. In the very near future, one of these states is going to come for Roe.

And if the Supreme Court’s actions today are any harbinger of the decision to come, the justification to overturn the one law protecting women’s right to seek an abortion could be shorter than this blog.