The exaggerated demise of Roe v. Wade

As the fight to replace Justice Ginsburg on the US Supreme Court ramps up to unprecedented levels, the media, politicians, and experts of all stripes will be tossing accusations from all sides at Judge Barrett to try to discredit her. Many will be about her background, claiming that she is wholly unqualified for the job. Some will be claims about what she will do in the future. One such arguments that is immensely popular among the left is the claim that the court will overturn Roe v. Wade. I'm here to tell you...the fact that Roe is still here is proof that it isn't going anywhere in any of our lifetimes.

Before we begin with a more in depth analysis, I want to clear up one common misconception. The Supreme Court cannot overrule itself whenever it wants. There are only two specific instances where a Supreme Court decision can be overturned. First, is by amending the US Constitution. Because the Roe case was argued on 14th Amendment grounds, it is virtually impossible for a change to be made to overturn Roe without completely evicerating the 14th. The second way is by hearing a case, argued on similar grounds and circumstances, and having a majority opinion that overrules the previous decision. The simple act of appointing a majority of pro-life justices does not mean Roe goes away. As we will see, even when a similar case (14th Amendment grounds) comes before a court with a significant conservative lean, Roe not only stayed, but became stronger.

When Roe was finally decided in 1973, it was a 7-2 decision. Included in that majority decision were Chief Justice Berger, Justice Blackman, and Justice Powell. All three of them, depending on how you quantify the data, can be considered moderate to conservative. I'm not trying to relitigate the case. I am looking to disprove the claim by liberals that a conservative majority on the court is an automatic kill shot to Roe.

As the years passed, the ideological balance of the court ebbed and flowed as the ideological makeup of Congress and the President has. Still, Roe went nowhere. No constitutional amendments, no new cases. Which brings us to 1992.

In 1992, circumstances collided that saw the first real glimmer of a chance to make changes to Roe. The makeup of the Supreme Court was seven conservative leaning/conservative justices to two liberals. Additionally, the case Planned Parenthood v. Casey was working its way through the court system on 14th Amendment grounds. It became clear that the case was going to end up in front of the Supreme Court. Instead of a conservative court killing or weakening Roe, it can be argued that the decisions reached in the Casey case fortified Roe.

As it currently stands, the only way that there could be any legitimate attempt to reduce/remove the Roe case is by bringing a case directly challenging the legality of Roe to a court with an overwhelmingly conservative court. A 6-3 court that includes Justices Roberts, Kavanaugh, and Gorsuch is not a court with that kind of balance. With the nature of politics today, I seriously doubt that we will ever see a court as conservative as will be needed to overturn Roe.

To my liberal friends, please stop the fearmongering. Just because the president wants to put a conservative on the Supreme Court it doesn't mean that your precious Roe is going anywhere. You can commit infanticide to your heart's content.