Gov. Andrew Cuomo promised on Wednesday to sue if the U.S. Supreme Court overturns Roe v. Wade sometime in the future.
But the question on social media after that promise quickly became: Sue whom? For what, specifically?
A Cuomo spokesman did not clarify who the state’s target would be in such a lawsuit when reached Wednesday. The state will seek to protect the fundamental constitutional right of women under both state and federal law, the spokesperson said.
The quote in question came during a rally on Wednesday where Cuomo, who is facing a female progressive challenger on the left in Cynthia Nixon this year, called on the Legislature to pass an abortion rights bill that’s stalled now for several years. The Reproductive Health Act would essentially codify Roe into state law. The state already has its own abortion laws, but they are more limited than the protections guaranteed under Roe.
“We now need to codify Roe v. Wade, which will actually increase the protections in New York,” Cuomo said. “God forbid they do what they intend to do. I want to get it done before the Supreme Court does that because I don’t want any gaps in a woman’s right to protection and we have a better legal case when the Supreme Court acts because I will sue when the Supreme Court acts and I want the New York state law in place.”
The state has a few options to protect abortion rights in New York state if the Supreme Court agrees to hear a case that would essentially reverse the landmark decision. A lawsuit is not one of them, according to legal experts.
“I can’t imagine who the state would sue and on what basis,” said Lucinda Finley, the Frank Raichle Professor of Law at the University at Buffalo School of Law. “You can’t sue a court because you don’t like its decision. That can’t be done.”
Any lawsuit filed by the state would involve the office of state Attorney General Barbara Underwood, the state’s top litigator. She was not included in the press release sent by Cuomo’s office Wednesday with his remarks about the lawsuit. Details were also not included in the release—just the particular quote from the governor’s rally.
Underwood’s office declined to comment on the hypothetical lawsuit, but Underwood has said she would support efforts to pass the Reproductive Health Act and become involved in litigation that could limit abortion rights.
“Know this: no matter what happens in Washington, this office will do everything in its power to protect reproductive rights — fighting rollbacks in the courts and enforcing NY laws that ensure a woman’s right to choose,” Underwood said in a tweet.
The state could have standing for a lawsuit if the Trump administration made efforts to reverse Roe before any decision by the Supreme Court, said Vin Bonventre, a professor at Albany Law School and expert on the Supreme Court.
“If the Trump administration would somehow try to overturn Roe v. Wade administratively, for example, introducing a bill, then of course Cuomo could sue on the grounds that Roe represents a constitutional right and that it cannot be overturned by the president or by congress passing a law,” Bonventre said.
New York could also get involved in any federal case involving abortion, even if that case originates outside the state of New York. The state’s abortion law and history as a civil rights leader would justify the attorney general’s involvement in a case like that.
“The only possibility is if he means he would be participating in a case in front of the Supreme Court where the administration or some other state was asking the court to overturn Roe,” Bonventre said. “Then he could certainly participate as an amicus.”
Those are options the state could take outside New York. Another option, and possibly the easiest, for the state to protect abortion rights in New York would be to pass the Reproductive Health Act.
“I do think the retirement of Justice Kennedy who was clearly the swing vote in preserving Roe does make it a very important time in New York to consider codifying access to abortion,” Finley said.
The bill has passed easily in the Democrat-controlled State Assembly for several years now. Republicans in the State Senate have been less keen on bringing the bill to the floor — or even passing it through committee. The bill failed in the chamber’s health committee in May.
The Republican excuse for not taking up the bill has been that it’s not necessary. Roe is the law of the land, Republican senators have said. Democrats see the appointment of staunchly conservative Judge Brett Kavanaugh to the Supreme Court as a threat to that rationale.
That’s assuming the Supreme Court even has the chance to overturn Roe. It’s not as if the court has unilateral authority to review past decisions and change them. A case would have to make its way through federal court and the Supreme Court would have to agree to hear it.
That wouldn’t happen anytime soon. Kavanaugh’s confirmation process by the Senate is expected to be lengthy, given his long paper trail as a judge on the D.C. Circuit. Democrats have also signaled that they intend to present challenges to the nomination, impeding it even more than usual.
Assuming Kavanaugh is confirmed, it’s also not a sure bet that he would vote to overturn Roe. He said during his confirmation hearing to the U.S. Court of Appeals for the D.C. Circuit in 2006 that he views the landmark decision as a precedent.
“On the question of Roe v. Wade, if confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully,” Kavanaugh said. “That would be binding precedent of the court.”
Beyond those steps, the only other options for the state would be to bring a new federal abortion case that eventually makes it to the Supreme Court or advocate for a federal constitutional amendment.
“The only thing that would take precedence over a U.S. Supreme Court ruling interpreting the federal constitution would be an amendment to the federal constitution,” Bonventre said.
As for a lawsuit after a Supreme Court ruling? No dice.
“I cannot imagine a legal scenario where the state itself could sue,” Finley said.