Commentary: Overturning Roe vs. Wade unlikely in near future

The Alabama legislature has just passed the most restrictive abortion bill one can imagine. So will Roe v. Wade, the 1973 U.S. Supreme Court case legalizing abortion, be overturned soon?

Probably not.

The Alabama bill makes it a Class A felony for a doctor (or presumably anyone else) to perform an abortion. Unlike other states, this bill doesn’t target the woman at all. Just the doctor.

No doubt about it, this bill directly challenges Roe v. Wade. Its sponsors and Gov. Kay Ivey, who signed it into law, say this is their hope and intention. So what about Roe? Will it be reversed, or is it “settled law” as some would put it.

Chief Justice John Roberts is nothing if not cautious — and especially protective of the high court’s reputation. Hence, many court watchers believe that he will oppose taking up any case that outright reverses Roe until he has at least one more vote. Or to put it another way, he won’t permit (if he can) any reversal on a 5-to-4 vote, given that Roe was decided 7-to-2.

Reid Beveridge

If logic had anything to do with it, Justice Ruth Bader Ginsberg should vote to reverse (she won’t, of course). This is because she said, some years ago, that Roe was wrongly decided. She is right. When he wrote the 7-to-2 decision supporting Roe in 1973, Justice Harry Blackmun said it was based on a right to privacy.

This also was the basis of the “Griswold” decision eight years earlier than struck down a Connecticut law prohibiting the sale of contraceptives. Please try to find the slightest sign of a right to privacy in the U.S. Constitution. You will not.

To say that Roe has been controversial ever since is a major understatement. Supreme Court nominees are invariably asked about it. And judged by it. Both Trump nominees to the Supreme Court, Neil Gorsuch and Brett Kavanaugh, were. However, it is not Kavanaugh who will make the difference. Chief Justice Roberts is likely to insist on at least a 6-to-3 vote to reverse such settled law, or precedent, called stare decisis.

It takes four justices to bring a case before the court. However, if the chief justice indicates he won’t be in favor of reversing Roe, it’s less likely that the other four conservatives would try to bring the case forward. And keep in mind that the court only considers a handful of cases each year in relation to the number of cases appealed.

What many court watchers believe is that the court may accept cases that nibble around the edges, as it already has. A couple such situations suggest themselves:

• The court might allow states to prohibit abortions after 20 weeks of pregnancy, or an even shorter time, say the first trimester.

• Several states have passed what are called “fetal heartbeat” bills. They would prohibit an abortion after the baby’s heartbeat can be detected, sometimes as early as six weeks after conception.

Even if Roe is overturned some day in the future, it doesn’t mean the end of abortion in the United States. Rather, a Roe reversal simply means that the issue is returned to the states. In 1973, when Roe was decided, some states were in the process of legalizing abortions — and some already had.

If this were to occur today, some states would legalize abortion and some would outlaw it. One guesses it would legal in Delaware, New Jersey, Maryland and New York, not to mention California. And would be illegal in Texas, Alabama, Mississippi and North Dakota.

Laws vary between and among the states. This would be no different.

It is rare for the Supreme Court to outright reverse a previous decision. However, it is useful to recall that this is exactly what happened in 1954 when the court ruled segregation unconstitutional, reversing Plessy v. Ferguson (1896). It also is useful to remember that Brown was decided unanimously.

Reid Beveridge has covered politics in Texas, Iowa, Wisconsin, Delaware and Washington, D.C. He is now retired at Broadkill Beach. He can be reached at Beveridgere@prodigy.net.

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