Roe v Wade Prediction - Alex Beal's Notes 🆎

# Will Roe v Wade be overturned before 2025? # Background This updates the prediction [posted on my blog](http://www.usrsb.in/roe-v-wade-2025.html). On November 9th, 2020 I predicted: > - Roe v Wade is wholesale overturned before 2025: 13.5% > - Roe v Wade is partially overturned/weakened before 2025: 31.5% > - Overall: 13.5% + 31.5% = 45% I updated on twitter after SCOTUS agreed to hear the Mississippi case: <blockquote class="twitter-tweet">I wrote this Roe v Wade forecast in November, and the first sub-prediction is on track to resolve true. That would put the overall prediction at 50%. Now that we know more about the specifics of the case, it's probably due for an update. <a href="https://t.co/QUiBRvsigB">https://t.co/QUiBRvsigB</a> <a href="https://t.co/utYLzntaJh">https://t.co/utYLzntaJh</a> <a href="https://t.co/dQRkxcDbvI">pic.twitter.com/dQRkxcDbvI</a>— Alex Beal 🆎 (@beala) <a href="https://twitter.com/beala/status/1394314000532377600?ref_src=twsrc%5Etfw">May 17, 2021</a></blockquote> At this point, a large component of the prediction is how SCOTUS rules on the MS case and if that ruling is a complete overturning of or just a weakening. If they choose not to overturn it now, it's possible they will before 2025, but I think that's unlikely. ## Overturned vs Weakened For my prediction, *Roe v Wade* is **wholesale overturned** if SCOTUS decides the case was decided wrongly and that there actually is not a constitutionally protected right to abortion. *Roe v Wade* is **weakened** if some component of *Roe v Wade* or [*Casey*](https://en.wikipedia.org/wiki/Planned_Parenthood_v._Casey) is changed to allow the MS law to stand.[^1] What could a weakening look like in this case? The oral arguments sketch out a scenario: <blockquote class="twitter-tweet">Now Thomas asks Stewart: "If we don't overrule Casey or Roe, do you have a standard that you propose other than the undue burden standard?" The undue burden standard is the standard created by Casey to evaluate abortion regulations prior to viability.— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466061613245644809?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> <blockquote class="twitter-tweet">Stewart responds that, if the court does not overturn Roe and Casey, it should at least discard the rule from those cases that states cannot prohibit abortions prior to viability (the point, around 24 weeks of pregnancy, when the fetus can survive outside the rule).— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466062007812165637?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> <blockquote class="twitter-tweet">Stewart suggests a "clarified undue burden standard untethered from any bright-line viability rule."— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466062077940965381?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> So perhaps the right to abortion still exists, but it's not tied to the [viability framework](https://en.wikipedia.org/wiki/Planned_Parenthood_v._Casey#Viability_of_the_fetus) put in place by *Casey*. Or perhaps the [undue burden standard](https://en.wikipedia.org/wiki/Planned_Parenthood_v._Casey#The_undue_burden_standard) is changed. Or both. # Per Justice Updates When I wrote my original prediction, I didn't know anything about the specifics of this case, but I tried to estimate how much each justice opposed abortion rights. Now that I know the specifics, I can update these based on the case and oral arguments. Below are my old and new estimates. | Justice | Opposes Abortions Right | Updated Opposes Abortion Rights | Change | | --------- | ----------------------- | ------------------------------- | ------ | | Sotomayor | 40% | 5% | -30 pp | | Breyer | 20% | 15% | -5 pp | | Kagan | 35% | 20% | -15 pp | | Gorsuch | 60% | 65% | +5 pp | | Kavanaugh | 60% | 70% | +10 pp | | Roberts | 55% | 75% | +20 pp | | Barret | 80% | 80% | 0 pp | | Thomas | 80% | 80% | 0 pp | | Alito | 80% | 90% | +10 pp | Treating these probabilities as independent, there is a 67% chance at least 5 justices decide to weaken *Roe*. Many of the conservative justices hinted that they were open to weakening either the viability framework or the undue burden standard. See the sections below. Is it right to model these as independent votes? Probably not. Maybe it's better to treat the more extreme justices as decided (basically everyone but Gorusch (65%), Kavanaugh (70%), and Roberts (75%)) and focus on the swing votes. For the conservatives to get to 5, at least two of them have to vote to weaken *Roe*. That gives a 79% chance of weakening *Roe*. I think this second way of modeling it is probably better and so I'll settle on a 75% chance of weaking *Roe* based on this analysis. ## Sotomayor Sotomayor is pretty clearly not having it. <blockquote class="twitter-tweet">Sotomayor is not pulling any punches: "Will this institution survive the stench that this creates in the public perception -- that the Constitution and its reading are just political acts? I don’t see how it is possible."— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466064599883685897?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> Updated from 40% to 5%. ## Breyer Breyer[]() thinks that precedent is important. <blockquote class="twitter-tweet">Stephen Breyer asks a lengthy and emphatic question about the importance of stare decisis -- the concept that courts generally adhere to prior precedents. He quotes language in Casey stating that the court should be extremely reluctant to overrule Roe.— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466062722345447429?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> Updated from 20% to 15%. ## Roberts As I linked to in my previous prediction, Roberts has said some really mixed things on [abortion](https://www.ontheissues.org/Court/John_Roberts_Abortion.htm). In the past he's said that *Roe* was wrongly decided, but has also said that it's settled precedent. During the oral arguments, he hinted that he would be open to revising the viability framework. <blockquote class="twitter-tweet">John Roberts, who almost certainly will be a pivotal vote in this case, makes his first remarks of the day. He says fetal viability was not initially an issue in Roe v. Wade, and he says that Justice Blackmun (Roe's author) later suggested that Roe's viability line was dicta.— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466065377151045637?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> He returns to this line of questioning later: <blockquote class="twitter-tweet">This is a very significant line of questioning from Roberts that suggests he is at least mulling the possibility of a ruling that would not formally overturn Roe & Casey but would discard the viability line -- opening the door to prohibitions on abortion earlier in pregnancy.— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466074320891953159?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> As the tweet points out, his vote should also be weighted heavily as it may be the deciding swing vote. Updated from 55% to 75%. ## Kagan Kagan hints that she thinks the precedent should stick. <blockquote class="twitter-tweet">Elena Kagan says a major goal of stare decisis is "to prevent people from thinking that this court is a political institution that will go back and forth" depending on the court's changing membership or who "yells the loudest."— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466068294637690882?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> <blockquote class="twitter-tweet">Kagan: For the court to overturn a prior precedent, "usually there has to be a justification, a strong justification," beyond the fact that some people think the precedent is wrong.— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466068599248932873?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> Updated from 35% to 20%. ## Kavanaugh Kavanaugh keeps his cards close to his chest. In this question, it's unclear if he's subtly hinting at his own beliefs (that abortion should be decided by the states) or if he's just asking for clarification: <blockquote class="twitter-tweet">What Kavanaugh is tacitly alluding to here is the argument by some abortion opponents that fetal life is protected under the 14th Amendment -- a view that, if adopted, would essentially make abortion unconstitutional. Kavanaugh suggests he is not receptive to that view.— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466071910924664837?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> This is more emphatic: <blockquote class="twitter-tweet">Kavanaugh lists numerous landmark cases from the court's history, including Brown v. Board of Education, in which the court overturned prior precedents. If the court had simply followed stare decisis in those cases, Kavanaugh says, "the country would be a much different place."— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466081821167435777?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> <blockquote class="twitter-tweet">Big question from Kavanaugh here. "If we think that the prior precedents [Roe & Casey] are seriously wrong -- if that -- why then doesn't the history of this court’s practice [suggest] that the right answer is to return to the position of neutrality?"— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466082281471332359?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> On balancing the interests of the mother and the unborn child, Kavanaugh is torn: <blockquote class="twitter-tweet">Kavanaugh: “You can’t accommodate both interests. You have to pick. That’s the fundamental problem. And one interest has to prevail over the other at any given point in time. And that’s why this is so challenging.”— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466087593813098508?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> Updated from 60% to 70%. ## Gorsuch Gorsuch hints at a weakening here: <blockquote class="twitter-tweet">Neil Gorsuch asks his first question of the day. He suggests that the Casey undue-burden test is "unworkable" and difficult for courts to administer -- and he says that should be relevant in the stare decisis analysis.— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466075073228554245?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> Updated from 60% to 65%. ## Alito Alito makes it fairly clear he's open to overturning the viability framework: <blockquote class="twitter-tweet">Samuel Alito now questions Rikelman on the viability line from Roe and Casey. Alito suggests the line is "arbitrary" and "doesn't make any sense."— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466076524642242570?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> <blockquote class="twitter-tweet">Alito: "If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed.” “The fetus has an interest in having a life, and that doesn’t change from the point before viability and after viability.”— SCOTUSblog (@SCOTUSblog) <a href="https://twitter.com/SCOTUSblog/status/1466076840901201921?ref_src=twsrc%5Etfw">December 1, 2021</a></blockquote> Updated from 80% to 90%. # Other Predictions The platforms I'm aware of that are predicting on this are Metaculus, FantasySCOTUS, and PredicIt. ## Metaculus They have [this question](https://www.metaculus.com/questions/1011/roe-v-wade-overturned-by-2028-07-31/), but I don't think the criteria tracks this case. That said, the community thinks there is 45% *Roe* will be overturned by 2028. ## Fantasy SCOTUS Here is their [table of predictions](https://fantasyscotus.net/case-prediction/dobbs-v-jackson-womens-health-organization/): ![[Pasted image 20211202170910.png]] The way Fantasy SCOTUS works is users can predict if they believe a justice will Reverse or Affirm the question. Notably, there is no way to give a percentage credence that a justice will Reverse or Affirm. The interface makes it into a binary choice. The percentages displayed in the table above is the percentage of users who think that justice will Reverse or Affirm. In this case, the question is "Whether all pre-viability prohibitions on elective abortions are unconstitutional." Reverse means let the MS law stand. Affirm means strike it down. Overall, their predictions are more extreme than mine, with Roberts being the clear swing vote at 50%. The overall prediction is that it will be a 5-4 decision upholding the MS law. ## PredictIt Finally, the [PredictIt market](https://www.predictit.org/markets/detail/7504/Will-SCOTUS-strike-down-Mississippi-ban-on-pre-viability-abortions-in-Dobbs) is currently at 20% the MS law will be struck down. # Overall Prediction Ok so where does that put me? My calculation above gives a 75% chance the MS law will be upheld by either wholesale overturning *Roe* or weakening it (including the precedent set by *Casey*). I think the votes exist to weaken if 5 of the judges can agree on which part to weaken. The fact that they all have to agree shifts me down slightly to 70%. I think weakening is the more likely of the two outcomes, so I split this up as a 25% chance of wholesale overturning and a 45% chance of a weakening. This is mostly based on the outside view that overturning a precedent this large is rare, and the inside view that the oral arguments were mostly about weakening. To be honest, I'm not sure I'm well calibrated enough on SCOTUS questions to make this fine a distinction, but in for a penny, in for a pound... If this case does not weaken or overturn Roe, what's the chance of that happening in the future? Not very high. If the composition of the court changes before 2025, it will swing in the liberal direction with Biden as president. - MS laws is upheld: 70% - Roe is weakened: 45% - Roe is overturned: 25% - Roe is overturned later: 3% - MS law is struck down: 27% [^1]: I suppose even this could come apart. Maybe SCOTUS strikes down the MS law, but says something in the ruling that weakens previous rulings. This seems unlikely.