Could Roe v. Wade be overturned?

What would it take to overturn the horrendous 1973 Supreme Court case that has led to the murder of more than 50 million unborn children?  It takes five Supreme Court justices to form a majority, and I used to think that we had four solid votes against Roe: Scalia, Thomas, Alito, and Roberts.  Kennedy is generally conservative, but not on social issues, and he has already voted to uphold Roe v. Wade.  The other four justices (Breyer, Ginsburg, Sotomayor, Kagan) are ideologically liberal and hold abortion to be a sacred right.

Justice Ginsburg is the oldest on the court.  Kennedy is not far behind, and Breyer is just two years younger than Kennedy.  Surely, I thought, of these three, at least one will retire soon, and if we had a Republican President we could pick up a net gain for conservatives that would push the balance of the court against Roe v. Wade.  I no longer hold that opinion.

I am almost certain now that Justice Roberts will never vote to overturn Roe v. Wade.  In addition to credible rumors I have heard about a libertarian streak in him, he has made it clear that he is unwilling to make waves on highly charged political issues that are settled policy.  He cares too much about the public reputation of the court.

This means, of course, that we only have three justices aligned against Roe v. Wade.  And one of them, Scalia, must also be close to retirement.  If Mitt Romney is elected President, he will likely have the opportunity to appoint two justices in his first term, but I would guess that one of them will be Scalia’s replacement, meaning Romney could only supply one net gain against Roe v. Wade.  He would probably have to be elected for a second term before he would have the opportunity to appoint another justice to shift the balance of the court against abortion-on-demand.

So, I am betting that Romney would have to appoint, at a minimum, three justices before there could be any hope of a reversal.  On top of that, all three appointments would have to be reliably conservative.  As past experience has demonstrated (now with Roberts as well),  reliable conservatives on the court are hard to come by.

What would the repeal of Roe accomplish?  Simply this: it would put the question of the legality of abortion back into the hands of the states.  No doubt, different states would regulate abortion in different ways (even as they do now under the parameters of Roe), but for the first time since 1973 states would have the freedom to put real protections in place for the unborn.  I would imagine that states like California would continue with the status quo, but a large number of states would virtually outlaw the practice, leading to a result of far fewer abortions and a culture that reflects, through its laws, a higher value placed upon human life at all stages.  It would not be the ideal situation, but it would be a lot better than what we have now.

At this point, it is still a dream that will be harder to reach than I previously thought.

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4 Responses to Could Roe v. Wade be overturned?

  1. reformedninja says:

    Roberts is in no way a libertarian and proved that with his recent vote. We libertarians hate taxes! Many of us even want to repeal the income tax amendment! Libertarian = less government and Roberts just set a dangerous precedent that gave the government more power.

  2. I think he does have a libertarian streak on social issues, much like Kennedy. George Will recently said that John Roberts may end up giving the whole country gay marriage.

    • reformedninja says:

      Libertarians believe marriage is a state issue, not a national one. Roberts is far away from being a libertarian. We’re the most constitutional people you can find. Roberts obviously is not.

  3. Chris says:

    Not much surprises me these days. The Roberts’ decision was a surprise, but not a shock. I’ve thought for a long time that Roe V. Wade will never be overturned. Your post only makes my view stronger. Thanks for the interesting speculation.

    God’s blessings…

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