Roe v. Wade: What Would It Take For an Overturn?

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When you talk to many reluctant Trump voters one of the main reasons they cite for supporting the President in the end is so that we can get a conservative appointment to the Supreme Court.  For many that included selecting a pro-life judge in the hope that the Court would overturn the landmark decision regarding abortion: Roe v. Wade.

So let’s take a look at what would need to happen for Roe v. Wade to actually get overturned.

Back in the 70s Roe v. Wade went before the Supreme Court.  Seven out of nine Supreme Court Justices ruled that getting an abortion fell under the Right to Privacy, thus making abortion legal nationwide.  None of the justices from that case remain on the court, so we have to take a look at other cases to predict how the current court would rule on a case that might overturn Roe v. Wade.

The next major abortion case to go before the Supreme Court was Planned Parenthood v. Casey.  In this case, in a 5-4 decision the Court upheld the the right to an abortion under Roe v. Wade, but also established a threshold for what abortion regulations would be held as constitutional.  In Planned Parenthood v. Casey Justice Kennedy voted with the majority affirming Roe v. Wade, so we can assume that he would do so again in a similar case.  Justice Thomas voted with the minority signally that he would most likely vote to overturn the case.

More recently the court heard the case of Whole Woman’s Health v. Hellerstedt.  This case regarded abortion regulations passed by the Texas legislature.  In a 5-3 decision the Court struck down the Texas regulations because they imposed a “substantial burden” on access to abortion services in a way that infringed on the rights established under Roe.  Justices Kagan, Sotomayor, Ginsburg, Breyer, and Kennedy ruled in the majority with Thomas, Alito, and Roberts in the dissent.

So that is five of the current justices who are guaranteed to not vote to overturn Roe v. Wade, but let’s take a look at the other three.

In Planned Parenthood v. Casey Thomas signed on to a dissent that claimed Roe v. Wade was wrongly decided, so we can safely put him in the overturn column.

Justice Alito wrote in the past that “the Constitution does not protect a right to an abortion” back in 1985.  Given that and his vote on Whole Woman’s Health v. Hellerstedt, we can probably also move him into the overturn column.

Now on to Chief Justice Roberts where it gets tricky.  While Roberts voted with the conservative bloc on the Whole Woman’s Health case that only tells us for sure that Roberts would allow certain abortion restriction, not that he would overturn Roe v. Wade and removed abortion as a constitutional right.  As anyone who followed the Supreme Court’s ruling on Obamacare knows, Roberts can sometimes be a surprise and break with the conservative bloc.  Roberts has also stated that Roe v. Wade is settled precedent, so while he seems opening to narrowing the Roe decision whether or not he would overturn the ruling is questionable at best.

So here is where we stand with the current court on Roe v. Wade:

Uphold: Kagan, Sotomayor, Ginsburg, Breyer, and Kennedy

Overturn: Thomas and Alito

Uncertain: Roberts

Now President Elect Trump will be able to appoint a replacement for Justice Scalia (who would definitely be for overturning Roe).  Assuming he appoints a pro-life judge who would vote to overturn Roe there would still be a hard five votes upholding the case.  So to reach that goal a President Trump would need more appointments.  The eldest justices are Ginsburg 83, Kennedy 80, and Breyer 78.  All three are justices who have voted to uphold Roe.  Should those justices retire or pass on a President elect Trump would get to replace them and assuming Republicans keep the Senate he might be able to get justices confirmed who would overturn Roe.

So for Roe v. Wade to get overturned President elect Trump would have to get a Supreme Court appointment confirmed who would overturn the case.  A justice who would vote to uphold the case would have to be replaced before one who would overturn it.  A proper case would have to make its way up to the high court.  Justice Roberts would either have to vote with the conservative or a third justice who would uphold the case would have to be replaced.

While it is possible for that to happen in the next four years it is a bit of a stretch.  For those seeking the overturn of Roe v. Wade getting President Trump reelected and having Republicans keep control of the Senate would greatly increase the chances of that happening.


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