Is It Possible For Roe v. Wade To Be Overturned?

The simple answer to the title question is that Roe v. Wade can be overturned if the case is accepted by 4 members of the Supreme Court for review, and 5 members vote to declare it unconstitutional. As of this time there are 5 conservative and 4 liberal members on the court.

But, as reported in many newspapers, the road to overturning Roe is filled with minefields, precedent, strong societal sentiment, legal maneuvering and the consciences of nine extraordinary judicial scholars who are not blind to the needs of America.

The first area to consider is society. Is our country prepared to undo the overwhelming impact of Roe? No way in the mind of many experts. Not every woman favors the right of women to choose, but it’s a good bet than far more than half do. This group will be mobilized if Roe is challenged directly.

Women proponents are much more vocal, organized and determined than their opponents. And, it appears men are leading the charge against abortion, and women who oppose it are not so anxious to declare themselves publicly.

Politicians must also walk a fine line when it comes to abortion, especially female pols. There appears to be a stigma associated with women against the right to choose. And it’s likely that their young daughters who are overwhelmingly in favor of a woman’s right to choose are pressuring their influential moms.

Given the political turmoil that the US has experienced relating to the current administration and Clinton’s defeat in 2016, a reversal of Roe would surely cause a great political and societal backlash. Protest and marching could become violent.

You may be asking why societal reaction is relevant. After all, SCOTUS merely needs a case to judge and 5 members must vote to overturn the abortion law that was decided nearly 50 years ago. The fact is that the justices are mindful of actions that will adversely impact society. From time to time antiquated laws are changed, but they are few and far between. In most cases significant societal pressure made it wise for the court to make amends.

In the press a lot is being discussed about the mood of the courts. Some experts are saying that certain judges (including Chief Justice Roberts) prefer to make broad changes incrementally, and Roberts is certainly in a position to influence both conservative and liberal judges in this regard.

So it would not be a surprise if Roberts encouraged his colleagues to consider peripheral issues relating to abortion. In a sense, if existing law is anathema to a judge, he or she may choose to address it by making new law on the fringes of the main issue.

A wholesale decision: “Abortion is unconstitutional and illegal in the US” is not going to happen in the near term.

And finally there is stare decisis, the precedent issue that is a cornerstone of SCOTUS tradition. Every recent judge confirmed to the court said under oath that respecting the decisions of previous courts is critical.

This means that changing settled law should only occur if there is a great change in societal attitudes and/or circumstances. Things like slavery, prohibition of alcohol, segregation and the right to vote are some of the issues that rise to such a level. Abortion, in the writer’s opinion, does not because the country is split on the issue.

Many believe proponents of abortion should dial down the drama notwithstanding the new Alabama law that makes all abortions illegal. It will be declared unconstitutional and will not set any new precedent. It will be scorned by a significant majority of Americans as a political ploy that has no traction in the country.

However attacks on lower level issues such as limiting the number of abortion clinics in a state, waiting periods, mandatory abortion education, etc. will be front and center. If these cases gain support, abortion itself will eventually be on the docket.



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