The easiest path — but one less likely to provide optimism for abortion rights supporters — is simple persuasion. In 1895, the nation’s economy was being strangled by monopolistic trusts. Conservative justices were alarmed by the prospect of antitrust prosecutions under the newly approved Sherman Antitrust Act. When the Cleveland administration tried to break up the sugar trust — the lowest-hanging fruit in the orchard of trusts, controlling 98 percent of sugar manufacturing — the justices balked. A convoluted majority led by Chief Justice Melville Fuller insisted that control of manufacturing did not, in itself, indicate an intent to control prices.
Shockingly, Harlan was the only justice who saw the fallacy in this, rebutting, “Was it necessary that formal proof be made that the persons engaged in this combination admitted in words that they intended to restrain trade or commerce? Did anyone expect to find in the written agreements which resulted in the formation of this combination a distinct expression of purpose to restrain trade or commerce?”
This was no small matter: In industry after industry, manufacturers were banding together and cutting exclusive deals with railroad operators to drive out competitors and set wages and prices. The vast extent of the problem seemed to force some of the same justices to alter their thinking. Shifting political winds and relentless criticism of the court’s logic changed the tide. By 1905 — only 10 years later — the court had reopened the door to government actions to break up monopolies.
For supporters of Roe, however, a change of heart by existing justices seems patently unlikely. The close margin on abortion rights — 5-4, as opposed to the court’s 8-1 ruling in the sugar-trust case — may give the impression that the court doesn’t have so far to go to reach a different result. But unlike the nascent world of antitrust in the 1890s, the dug-in nature of the moral, political and legal issues surrounding abortion rights suggests no reconsideration is in the offing, barring a change in the court’s lineup.