There’s little doubt in my mind that the Roberts court is very willing to engage in historical revisionism to overturn precedent. One need look no farther than DOC v. Heller, which effectively invented the individual right to own a firearm, despite the historical evidence that the second amendment was never intended to establish such right.
In the majority opinion in Roe v. Wade, Justice Blackmun argued decisively that the 14th amendment did not establish due process protections for fetuses as persons. His argument is rooted in a 19th century understanding of what was meant by “persons,” which did not include fetuses. However, I think it’s safe to assume that the conservatives on the court already have in mind overturning Roe v. Wade, and for them the only really interesting question will be finding the legal justification for doing it.
An interesting and apparently little noticed speculation on what that justification might look like was offered by Corey Brettschneider in the New York Times when Gorsuch was up for confirmation in spring of 2017. In “Gorsuch, Abortion, and the Concept of Personhood,” Brettschneider explained how Gorsuch, under the influence of natural-law philosopher John Finnis, might argue as he had in cases of assisted suicide and euthanasia that abortion is prohibited by the 14th amendment, which established protections for “constitutional persons”—that is, “persons” defined for the purposes of constitutional law. The important point here is that, under such an interpretation of the 14th amendment, states would be prohibited from violating the due process clause by allowing abortion to be practiced within their jurisdiction. In short, under this reading of the 14th amendment, the prohibition of abortion would be the law of the land.
No one really knows, with certainty, what arguments Gorsuch, et al., will offer as justification for overturning Roe v. Wade. However, I believe it’s a mistake to assume that the authority for regulating abortion will automatically fall to the states if and when Roe v. Wade is overturned. We won’t know that until the justices have made their arguments in a specific case before their review. In the meantime, we would do well to assume that a fight to preserve Roe v. Wade is a fight to preserve the legality of abortion anywhere and everywhere in the United States.