Will the Supreme Court outlaw abortion?

janderson462 asked this question on 11/1/2000:

It is estimated that the next president will have the opportunity to appoint 3 justices to the Supreme Court. There seems to be much speculation and apprehensison in the coming election about the court's ability or intention to overturn some important decisions including abortion, state's rights, etc.

If 3 conservative justices are appointed, how easy and likely would it be, in your opinion, for the court overturn Roe V Wade? Please explain the steps that would be necessary for the court to overturn this decision. How would the process start? How long would it take? Who is involved? What happens afterwards? Lastly, is this likely to happen?

Thanks in advance,

John Anderson
Seattle, WA

JesseGordon gave this response on 11/1/2000:

Supreme Court Justices are extremely reluctant to overturn decisions made by their predecessors -- especially when a decision has been in force for 27 years like Roe v. Wade has. This concept is called "stare decisis," and was the basis by which even some current conservative justices upheld Roe v. Wade the last time it was tested.

In other words, "stare decisis" means a justice might not have ruled favorably on Roe v. Wade in 1973, but they won't overturn it without a strong reason.

So even if Bush wins, and even if he does appoint 3 conservative justices, those 3 might not overturn Roe v. Wade, unless they see a compelling reason to do so.

Now as to timing:
The Supreme Court only tries cases that are brought to it -- they can't decide anything without that. And the case would have to be a compelling one, with sufficient import to get to the Supreme Court level. So, it could take a year or two before an appropriate case reaches the Court -- but of course with each new appointee, pro-life advocates are always looking for appropriate cases.

If the Court DOES overturn Row v. Wade, then the only thing that immediately happens is the rule reverts to the states (or they could make some new rules to replace the Roe rules).

But reverting to the states is quite a big deal. Many states have intentionally created state laws banning abortion, which cannot currently be enforced because of Roe, so that if Row gets overturned, the state ban will immediately be in force. Other states have encoded abortion rights for the same reason, even though they're not currently needed.

Finally, on what is likely to happen:
If Gore gets elected, Roe is safe.
If Bush gets elected, I just don't see him as giving overturning Roe a very high priority, so I don't think it'll be overturned unless Bush gets 4 or 5 Supreme Court appointments. Take a look at his statements during the campaign:

* No litmus test; just strict constructionist interpretation. (Oct 3)

* No tax money for abortion, but no Pro-Life Amendment either. (Sep 30)

* No litmus test except strict Constitutional interpretation. (Aug 30)

* No pro-life pledge; VP & judges will simply be qualified. (Jan 10)

* Would support - but not pursue - a pro-life Amendment. (Jun 1999)

* Source:

Notice the careful wording he uses in all of those; he hedges carefully to avoid saying he'll use a definitive anti-Roe litmus test, and makes no hard pro-life commitment. Bascially, Bush has been walking a fine line between the hard-core pro-life GOP nad the moderate GOP -- he simply is not strongly pro-life. So, no, I don't think he'll push this issue. Yes, he'd appoint a couple of strong conservatives, but not all of the first 3 would be; he'll alternate between hard-core pro-life and other issues, I think.

janderson462 rated this answer:

Finally, a concise and objective answer on this issue! Thanks a bunch.

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