"As far as abortion is concerned, it doesn't matter who replaces Justice Thurgood Marshall. There is already a majority on the Supreme Court to overrule Roe vs. Wade." This view is both widely held and basically wrong.
Whatever the fate of Roe vs. Wade, reproductive-rights issues will continue to come before the Supreme Court well into the next century.On many critically important abortion-related issues, the court may be closely divided, and Marshall's successor could cast the decisive vote.
In a very real sense, of course, Roe vs. Wade has already been overruled.
A majority of the court no longer considers a woman's decision about whether to continue a pregnancy to be a fundamentally important constitutional liberty and is now prepared to sustain restrictions that seriously curtail access to abortion for those women who are young, poor or living in rural areas.
But even if Roe is explicitly overruled, the question remains: What doctrine will replace it? Abortion issues will not disappear into some constitutional black hole, immune from any further judicial scrutiny.
Restrictive abortion statutes, no longer automatically invalid, will still be subject to constitutional attack on narrower grounds. These more specific constitutional claims are by no means doomed to failure.
Consider the abortion issues likely to arise in the future. It is not so clear how the court will rule on a new Pennsylvania provision that requires married women to certify that they have notified their husbands of their decision to have an abortion.
State-compelled communication between spouses raises profound constitutional questions that will remain difficult in the absence of Roe.
Nor is it clear how the Supreme Court will rule on laws recently enacted in Louisiana, Utah and Guam that prohibit virtually all abortions.
Even in the absence of a strong "Roe doctrine," there are both procedural and substantive due process grounds for challenging those laws.
Louisiana, for example, provides that a physician "who commits the crime of abortion" may be fined $100,000 and sentenced to imprisonment at hard labor for 10 years. The act purports to make an exception for abortions that are "necessary to save the life of the mother."
The criminal penalties are so severe and the exception so narrow, however, a physician would hesitate to perform even a life-saving abortion for fear of being unable to convince a criminal court after the fact that a woman's life had actually been at risk.
By severely distorting medical decisions, this law deprives some pregnant women of "life" without due process of law in violation of an express constitutional right.
If the court invalidates Louisiana's law, anti-abortion legislators will go back to the drawing board.
If the court's decision required a broadening of the "hardship" grounds for permissible abortions, restrictive states will likely create bureaucratic committees to which all women seeking abortions must submit their cases.
The intrusive nature of such a system will predictably create numerous procedural due process issues.
If, on the other hand, the court were to uphold Louisiana's drastic law, the abortion issue would by no means disappear from the courts.
A year after Louisiana's law went into effect, it would become clear to everyone that it included an enormous "loophole": It does nothing to prevent women from leaving the state to have abortions elsewhere.
Some anti-abortion states would inevitably try to close this huge back door by making it a crime for residents to leave the state for the purpose of obtaining an abortion. No one knows whether such a law would be sustained by a court that had abandoned Roe vs. Wade.
Finally, the great abortion issue of the future may be whether Congress has the power to enact a statute guaranteeing reproductive rights nationwide.
I had previously thought it clear that Congress could pass such a law under its power "to enforce by appropriate legislation" the guarantee of liberty in the 14th Amendment.
As the court becomes increasingly hostile to congressional legislation protecting rights, I am no longer certain how the court would rule. The decisive judgment could be that of Marshall's successor.
(Walter Dellinger is a professor of law at Duke University.)