The critical turn in the law may come if Justice Roberts helps to flip the decision that struck down the laws on partial-birth abortion in the states. Sandra O'Connor was the swing vote in Stenberg v. Carhart (2000), but John Roberts could make the difference in sustaining the federal bill. If that is done, the Court will be saying, in effect, that it is in business now to consider anew this long chain of cases offering restrictions of various kinds on abortion. What would follow then is a long line of cases, moving in small steps, with the Court upholding one restriction after another on abortion, each one modest, each one regarded by the public as plainly reasonable. When that happens, the regime of Roe v. Wade will have come to an end, without even the need to pronounce it over.
The abortion issues Arkes still considers open in a Roberts court are:
- Must late term abortions be lethal, or might a state require non-lethal late-term abortions?
- What to do with an abortion that results in a live birth?
- May legislatures require a woman be given information about the developmental condition of her unborn child prior to an abortion?
- What will be the fate of parental notification laws?