Chipping away at Roe v. Wade
Published 5:37 pm Tuesday, March 17, 2020
By Jason Swindle
Senior partner at Swindle Law Group
On Jan 22, 1973, the United States Supreme Court, in a 7-2 decision, struck down the Texas law banning abortion, effectively legalizing the procedure nationwide. In a majority opinion written by Justice Harry Blackmun, the Court declared that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment even though the right to privacy is not written in the Constitution.
Roe v. Wade is arguably one of the most famous Supreme Court cases of all time. It has remained at the forefront of American politics for decades and has changed the way federal judges are vetted when appointed by the president.
Supporters of the decision hold it up as a beacon for women’s independence and equality. Critics view it as an overreach by the Supreme Court.
Abortion is a complicated and highly controversial issue for many people. I have always been conflicted. My libertarian bent strongly dislikes the government intruding into the daily lives of citizens. Yet, my respect for human life does not like the idea of taking a life in this manner.
This issue will be front and center during the next few years.
As states continue passing restrictions on abortion, many wonder if the case will be overturned.
The Supreme Court has overturned very few of its own cases in the past. This is because of the legal doctrine of stare decisis, which is Latin for “let the decision stand.”
This means that current members of the Court are reluctant to overturn prior rulings made by their colleagues. However, the principles of stare decisis are not legally binding or uniformly enforced.
This is illustrated by the fact that recent cases have chipped away at the right created by the Court in Roe.
A complete overturn of Roe v. Wade would be a challenge because of stare decisis. But abortion rights could be diminished through subsequent decisions.
That is why so many states have continued to pass laws that contradict Roe. If those laws are challenged all the way up to the Supreme Court, the nine justices will have to revisit the issue and decide how far the rights in Roe can extend.
What happens if Roe is overturned? Before 1973, abortion laws across the country varied widely. Some states had banned all abortions, while others had legalized them in certain circumstances. In determining that a Texas abortion statute violated the Constitution, Roe v. Wade established a legal framework for abortion regulations at the federal level.
Contrary to popular belief, overturning Roe would not “outlaw” abortions. If Roe is overturned, it would once again be up to the individual states to decide how to regulate abortion.
In March 2020, the Court heard arguments in June Medical Services v. Gee, a Louisiana case that examined a similar abortion law in Texas. Even if the Court declines to overturn Roe, it could chip away at Roe’s protections by preventing abortion providers from filing lawsuits on behalf of their patients. The Court’s opinion is expected by this summer.
In general, the current makeup of the Court consists of four strong conservative, four strong liberals, and Chief Justice John Roberts, who is a moderate conservative. However, the tough liberal justice, Ruth Bader Ginsburg, is 87, a four time cancer survivor, and was hospitalized in November 2019. This is an election year. While I pray for her health, the next president may be appointing her replacement. If Present Trump wins, he will appoint a conservative which would leave only three liberal justices. With a 6-3 conservative majority, the Court would have the ability to significantly affect Roe v. Wade.
Some states are already prepared for a possible overturning of Roe. If June Medical Services overturns Roe in 2020, eight states have “trigger laws” in place that would immediately ban all or significantly restrict abortions; Arkansas, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Tennessee and South Dakota.
Although a complete overturn of Roe v. Wade is unlikely, abortion regulation in the United States is by no means settled at this point.
Those opposed to abortion will continue to challenge Roe, and some of those challenges will find their way to the Supreme Court.