Could Roe v. Wade Be Overturned?
If Roe is overturned, then abortion law merely returns to the states, where it constitutionally belongs.
Since President Donald Trump’s Supreme Court nomination of Brett Kavanaugh, leftists and abortion activists nationwide have raised the alarm that the so-called reproductive rights of women now hang in the balance. Meanwhile, pro-life and pro-family groups have newfound, if tentative, hope that the 1973 Supreme Court ruling permitting the ensuing slaughter of 60 million unborn children may be on its way out. But could the infamous Roe v. Wade decision ever be overturned, and if so, how might the consequences play out?
It’s far from common for the Supreme Court to overturn one of its own decisions. Precedent is generally revered in the American legal system, and justices usually follow the principle of stare decisis, a Latin phrase meaning “let the decision stand.” The most likely scenario, and one that especially concerns leftists, would be the Court allowing abortion rights to be decided state by state rather than nationally. More conservative states would likely make many abortions illegal, whereas more leftist coastal states would house the remaining bastions of Planned Parenthood. A nationwide ban on abortion, while a great leftist scare tactic, is nigh unimaginable.
“Whether or not a new social consensus is developing on [abortion], its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense,” Justices Anthony Kennedy, Sandra Day O'Connor, and David Souter wrote in their collective opinion on Planned Parenthood v. Casey, the 1992 case in which the Court squandered an opportunity to overturn Roe. “A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.”
That was exactly backwards.
There was great legal error in the litigations of Roe. For one thing, the motivation behind the case was less about women’s rights and more about eugenics, the racist pseudoscience that seeks to control populations deemed by leftists as undesirable and inferior. As Justice Ruth Bader Ginsburg revealed in a 2009 New York Times interview, she and others believed “at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”
Roe also contains some stunningly poor argumentation. The state of Texas argued that, because life begins at conception, the unborn are entitled to legal protection under the law. The Court responded, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
This incoherent line of reasoning is twofold. First, it is an established scientific fact that life begins at conception; this simple biological reality is not a “difficult question” and was known even in 1973. Second, the Court concluded that, because one may not know when life begins, abortion should be legal. However, if one is not convinced as to whether or not the unborn is a human person, that itself stands as a good reason to refrain from the destruction of a possible human life. To borrow an analogy from Peter Kreeft, if a hunter sees something moving in the thicket but isn’t sure if it is a deer or his fellow hunter, wouldn’t that be sufficient reason not to shoot?
Edward Lazarus, the clerk for Justice Blackmun, remarked, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. … Justice Blackmun’s opinion provides essentially no reasoning in support of its holding.”
Norma McCorvey, the “Roe” of the infamous case, was a drug addict, an alcoholic, and homeless at the time her case was taken up by Linda Coffee of Women’s Equity Action League and Sarah Weddington, both of whom were looking for pregnant women they could exploit for challenging existing abortion laws. McCorvey initially claimed that she was pregnant as a result of rape but later admitted that the claim had been fabricated to make her case more sensational. McCorvey never actually had the abortion. The case took three years to reach the Supreme Court, during which time McCorvey gave birth to her baby and put her up for adoption.
McCorvey later converted to Roman Catholicism and became a tireless advocate for the pro-life cause.
If Roe is overturned, then abortion law merely returns to the states, where it constitutionally belongs. And if that happens, it’s possible that an interesting pattern would develop nationwide. Communities that support pregnant women will flourish, while other cities haunted with abortion mills will continue to perpetuate the same destructive patterns of death, abuse, and deception. Abortion will never be completely outlawed in the United States, but it may very well become unthinkable and unnecessary across much of our great nation.