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Is it time’s up for Roe v. Wade? If so, what can we expect?

On Behalf of | Oct 5, 2021 | Social Justice |

Anti-abortion believers have been fighting Roe v. Wade since it was decided nearly 50 years ago. We all have our own opinions, but the Supreme Court has held to the Roe ruling primarily to provide a stable legal framework in which people can make rational decisions.

They rely on the doctrine of “stare decisis,” which obligates the court to stick with the final ruling on the issue even when a lot of people don’t like it. Ideally, once an issue has been put before the court, that issue is firmly decided. The ruling is now precedential and lower courts must follow it unless they can show that the newer case can be substantially distinguished from the precedential one.

Now, a group of new anti-abortion laws has cropped up that advocates hope will serve to overturn Roe. The most famous comes from Texas. Under the new law, individuals can sue people who get or facilitate abortions after the sixth week of pregnancy. However, the Texas law technically doesn’t place state restrictions on abortion, its supporters argue.

The law most likely to threaten the Roe ruling is from Mississippi. It banks virtually all abortions after the 15th week of pregnancy. This appears to go directly against Roe and a later abortion case called Planned Parenthood v. Casey, which affirmed Roe. In Casey, the court held that states can only ban abortions after the fetus becomes viable on its own (at about 24 weeks). Before that, states can only place reasonable restrictions that do not “unduly burden” the woman’s right to an abortion.

The Supreme Court is probably going to allow these new laws

Although the Supreme Court doesn’t officially take a position before ruling on cases, it seems pretty likely that it is going to strike down Roe this session. For one thing, when abortion rights advocates asked the Supreme Court to put the Texas law on hold while considering whether it is constitutional, the justices refused. That means the law is currently in force.

For another thing, the high court has agreed to hear the merits of Mississippi’s law instead of simply declaring it invalid because of Roe and Casey. The case will come before the justices on December 1, and it is expected to be decided next spring.

Why would the court put stare decisis aside and overturn Roe?

Justice Clarence Thomas and others have insisted that there is no politics involved in these two decisions. Traditionally, the Supreme Court has prided itself on deciding fairly and neutrally, not based on the political leanings of the justices. In reality, many court cases in the past and present have had the strong appearance of partiality.

It seems clear that the justices’ political leanings are at play. For decades, each political party has attempted to sway the conservative-liberal bent of the high court by getting justices appointed who they believe agree with their views. This has, over time, led to a rough balance of five justices leaning one way and four the other. That leaves the most centrist justice as the deciding vote.

Now, the court is imbalanced in a way it hasn’t been since FDR. When Congress denied President Obama an opportunity to appoint a justice and instead gave that appointment to the Trump administration, it allowed this imbalance to occur. Now, it is generally believed that there are six conservative-leaning justices and only three liberal-leaning justices. In other words, there is no need for a centrist tie-breaker. The conservative majority will almost always get its way.

What happens if Roe is overturned?

That’s an open question. Abortion rights advocates have proposed many plans to protect abortion access if the Supreme Court should rule that states can restrict abortion before fetal viability.

First, not all states would pass such laws. That could lead to a patchwork of abortion access around the nation. Women with resources would be able to travel to where the abortion laws were less strict.

Even if many states did pass restrictive laws, one option might be to pass a nationwide access mandate in Congress. Since federal laws trump state laws, it might be possible to make abortion legal at the national level.

If that did not work, liberal-leaning administrations might do their best to pack the court on their side. One idea is simply to add four more justices. If all of them leaned liberal, they would then have a seven-six majority.

One thing is for sure. If the Supreme Court limits Roe, the battle might just be beginning.

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