Roe v. Wade, the 1973 Supreme Court decision that established a woman’s Constitutional right to an abortion, is in the spotlight after the retirement of Supreme Court justice Anthony Kennedy. Reproductive-rights activists have long feared that a Republican-appointed conservative justice could endanger the ruling and criminalize abortion in many states. This is how it could happen.
Can Roe v. Wade be overturned?
Yes, Supreme Court rulings can be overturned, and Roe is no exception. (The court often, but not always, observes what is called stare decisis, Latin for “to stand by what is already decided.”) “The court cares about things like its own legitimacy, and how often a precedent has been upheld in the past,” said Amy Myrick, staff attorney at the Center for Reproductive Rights, on NPR Tuesday. But the court has also reversed itself 235 times in two centuries.
In the original Roe v. Wade decision, the court ruled 7-2 that a woman’s federal right to abortion is embedded within the 14th Amendment’s right to privacy. That has been upheld by the Court twice, in decisions on cases in 1992 and 2016.
But there are several abortion-related cases making their way through lower courts that could end up before the Supreme Court in the next year. One of them could lead to Roe v. Wade being struck down outright. Or a decision could “hollow out” Roe by applying further restrictions to abortion access. Some experts consider the second scenario more likely.
If Roe is overturned, the issue of abortion will return to the states, which will decide to allow or ban it individually. Legal journalist Jeffrey Toobin predicted that abortion will be illegal in 20 states within 18 months.
Over the years, many states have chipped away at Roe v. Wade by enacting laws that made abortion clinics financially infeasible to operate. Some states only have one remaining abortion provider.
During the presidential campaign, Trump said that women who have abortions should be punished. “There has to be some form of punishment,” he told MSNBC’s Chris Matthews in an interview before a town hall in March 2016.
Vice President Mike Pence has been a longtime foe of abortion and has vowed that the Trump administration will have the law “consigned to the ash heap of history.”
