Academic journal article Issues in Law & Medicine

Overruling Roe V. Wade: The Implications for the Law

Academic journal article Issues in Law & Medicine

Overruling Roe V. Wade: The Implications for the Law

Article excerpt

The election of Donald Trump as president on November 8, 2016, and the possibility that he may have the opportunity to replace several justices on the Supreme Court, have fueled speculation that the Court, with new appointments, may ultimately overrule Roe v. Wade,1 as modified by Planned Parenthood v. Casey,2 and return the issue of abortion to the States. This paper explores the likelihood of an overruling decision and, more importantly, what the implications of such a decision would have for the legality of abortion.

E valuation of the Court and Prospects for Change

Presently, there is only one justice on the Supreme Court who is on record as calling for Roe to be overruled--Justice Clarence Thomas. Based upon his published judicial opinions and general jurisprudential philosophy, Justice Samuel Alito would likely be a second vote to overrule Roe. Although it would be premature to "handicap" how Justice Neil Gorsuch would vote, his background on the Tenth Circuit, his publications both on and off the bench and his opinions as a Supreme Court justice strongly suggest that he would be a third vote to overrule Roe. Although a number of persons are of the opinion that Chief Justice John Roberts would vote to overrule Roe, that is doubtful for at least two reasons. First, the Chief Justice appears to have an exaggerated respect for the principle of stare decisis, that is, the rule of adhering to prior precedent. This has been manifested in a number of opinions he has written where he takes a "minimalist" approach to limiting or modifying prior precedents with which he disagrees. Given that Roe v. Wade has been the law of the land for more than forty years and has been reaffirmed three times since then,3 it is questionable whether Chief Justice Roberts would be willing to cast the deciding vote to overturn a precedent of Roe's pedigree. Second, based upon his opinion upholding the constitutionality of the Affordable Care Act,4 on a theory that is difficult to accept at face value (to wit, that what was clearly drafted and intended as a penalty for not obtaining health insurance should be regarded instead as a tax), the Chief Justice appears to be influenced by political considerations. Perhaps with the Supreme Court's decision in Bush v. Gore5 in mind, he did not want to cast the deciding vote against the principal domestic policy achievement of President Obama's first term in a case that would have come out on a vote of five-to-four, with five Republican appointees on one side of the case (the Chief Justice, along withjustices Kennedy, Scalia, Thomas and Alito) and four Democratic appointees on the other side (Justices Ginsburg, Brever, Sotomayor and Kagan), and would have made the Court an issue in the presidential election of 2012. So, although Chief Justice Roberts might be willing to be the sixth vote to overrule Roe v. Wade, it is questionable whether he would be willing to cast the decisive fifth vote to do so. Given his Joint Opinion with Justices O'Connor and Souter, joined in this respect by Justices Blackmun and Stevens, reaffirming Roe v. Wade in Planned Parenthood v. Casey, Justice Anthony Kennedy cannot plausibly be regarded as a vote to overrule Roe. Nothing in his dissenting opinion in the first partial-birth abortion case, Stenberg v. Carhart,6 or his majority opinion in the second partial-birth abortion case, Gonzales v. Carhart,7 indicates otherwise. Indeed, in the former case, Justice Kennedy stated "Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability."8 Any doubts about Justice Kennedy's continued adherence to Roe should have been dispelled by his joining Justice Breyer's majority opinion in Whole Woman's Health v. Hellerstedt,9 last year, striking down two modest health regulations the State of Texas had imposed on abortion providers, that they have admitting privileges at a local hospital and that their facilities comply with the standards generally applicable to outpatient surgical facilities. …

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