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Open Thread: Options for overturning Roe v. Wade in our legal framework

July 15, 2009

Sotomayor said yesterday when asked about her thoughts on Roe v. Wade that the question of abortion was “settled law.” This is not much different from what Justices Alito and Roberts answered during their hearings with regard to Roe v. Wade when they cited their respect for precedence. It is understandable that all of them would answer the question in the same way if they want to be nominated regardless of their personal thoughts on abortion. Thus, here is my question (and my struggle): if our legal system, that is based on the common law model that relies heavily on precedence, has ratified the “right to privacy” as constitutional twice (Roe v. Wade and Planned Parenthood v. Casey), then what are our realistic solutions to overturn abortion rights in this legal framework? In other words, if an abortion case were to be heard by the Supreme court and a majority were to ignore the preceding decisions on the matter and overturn Roe v. Wade, how can the majority of justices justify their decision? Or instead of overturning Roe v. Wade, how could they (given the preceding decisions) push the decision on state courts?

I ask the question, because I acknowledge that there is a legal framework that we have to abide by in this country and that is the same framework that (you could say, unfortunately in this case) we have to work with. What are our options that are workable within our legal system?

  1. Ronald King permalink
    July 15, 2009 11:41 am

    Katerina, “Settled law” is subject to being reversed according to the article. So, we have two women on the court I am assuming and we have at issue the belief and determination of when a human being becomes a human being and thus receiving protection under the law.
    Research by Gottman at the U of Washington to determine what attributes constitute a successful relationship between a female and a male points to an extremely important finding in that success is greatly determined by the woman having more influence over the male than the opposite. This is most important in one specific area and that is in her ability to teach the male empathy which is a strong characteristic of love and also exhibits a high degree of integration within the various structures of the brain being reported by new advances in the study of interpersonal neurobiology.
    Holy cow, how did I get into this?
    Anyway, the appeal to the women-who were once officially thought of as second class citizens and now those thoughts are for the most part being suppressed-and the other minority on the court and the court in general seems to need to appeal to when being human begins.
    Jeremiah 31:22 “…for God has created a new thing in the earth, a woman shall compass a man.”

  2. July 15, 2009 1:28 pm

    Most likely, given the “settled law” mentality that seems to have taken hold, you wouldn’t see Roe overturned in one fell swoop (as Plessy was by Brown v. Board of Education). Instead, to the extent Roe is overturned, you will likely see a whittling away of the precedent. The Court’s upholding of the PBA ban was a step in this direction. Basically, under this approach, the Court would begin to uphold more and more restrictions on abortion. For example, I could envision the Court eventually upholding a ban on late-term abortions. Eventually, we could hope, as more and more restrictions are upheld, that the Court would come to see the folly of Roe and its progeny as constitutional law and then overturn it on the basis of the new precedent (i.e. the new restrictions the Court would have begun to uphold).

    That’s certainly not my preferred route … I’d like to see Roe overturned in its entirety (as the Court almost did in Casey, before Anthony Kennedy got cold feet). But I think its the most likely option given the constitutional framework in which the members of the Court seem to believe they have to work.

    Also, I know the “federalism” option of returning the issue to the states is less than preferable, but I also believe that most states would significantly restrict abortion and some would likely ban it almost all instances, if given the opportunity that they are currently denied by the Roe framework. (And since I can foresee no instance in which the Court is likely to rule that abortion violates the 5th and 14th amendment right to life … even though we know it obviously does.)

  3. Blackadder permalink
    July 15, 2009 5:07 pm

    I have to say, as an attorney, I find the concept of “settled law” somewhat mystifying. The only time it ever comes up is in these confirmation hearings. It seems to be a term that the Senators *think* has implications for how a judge will decide cases but which the nominee knows doesn’t, and so the nominee is happy to say that this or that case is settled law knowing that the statement is basically meaningless.

  4. July 15, 2009 6:23 pm


    Yes, they are always going to say what the senators want to hear. But what about precedence though? For instance, given the recent Supreme Court’s ruling on the second amendment that interpreted it as the right of individuals to bear arms, I would not expect the court in the future to decide differently… Or is it still plausible?

  5. July 16, 2009 1:11 pm


    I think a fair reading of the history of U.S. Supreme Court jurisprudence would suggest adherence to precedent is a second or third order concern for most Supreme Court justices. For example, in Bowers v. Hardwick (1986) the Court held that anti-sodomy statutes were Constitutional. It was directly overturned less than twenty years later than Lawrence v. Texas (2005). In the school de-segregation ruling, Brown v. Board of Education, the Court directly reversed Plessy v. Ferguson (1896). Most of the landmark Supreme Court decisions of the 1960’s completely redefined existing rights or created new rights out of whole cloth. Even in Casey, as Scalia observed in dissent, the majority opinion selectively invoked and ignored precedent in a manner that called into question whether precedent was doing any work in the decision.

    My personal view is that the Court is best described descriptively (if not normatively) as a third legislature with a particularly idiosyncratic selection mechanism, at least on matters of Constitutional law (and sometimes on matters of statutory interpretation). In saying that precedent is a second or third order concern, I am not saying it isn’t considered at all – it is, and justices will often pay lip service to precedent, even if they are substantially modifying it. At times the Court will go to great lengths to formally distinguish, rather than directly over-rule precedent (see Scalia’s tortured attempts to distinguish precedent in Employment Division v. Smith as an example).

    All of which is a long way of agreeing with BA and Jay above. “Settled law” is not a phrased that is used often in legal literature, or even outside of confirmation hearings. As employed by Roberts, for example, it seems to mean only that the law is clear; that there is not any ambiguity about the state of the law under existing precedent. It is not clear what Sotomayor means by ‘settled law’, although some commentators have suggested she is basically modeling all of her responses on Robert’s confirmation hearings (you won’t hear her waxing eloquent about empathy). Clarity is important to some degree because precedent is a constitutional concern, and I think Jay is right that the Court will be reluctant to overturn Roe in one dramatic ruling. But that does not mean overturning or substantially modifying Roe is hopeless, although it looked that way in the mid-1990’s. Assuming the health of the current conservative Justices, the next Republican president will likely be one judicial appointment away from substantially modifying or discarding Roe.

  6. Father Clifford Stevens permalink
    July 16, 2009 5:44 pm

    Stare decisis, respect for precedent, is not as sacred in American Law as in British Law, for example, the reversals of Plessy v. Ferguson(segregation), Lochner v. New York(rights of workers), and Hammer v. Dagenhart(child labor) all reversed with new empiricl data and new legal reasoning. New legal reasoning in the case of Roe v. Wade and abortion would include the argument that the case of the unborn is one of divided dominion, as we as new empirical data from the more than 200 embryonic sciences that have emerged since the Roe v. Wade decision in 1973. However, this cannot be accomplished without massive litigation over a number of years, which no pro-life organization is willinto undertake. What has to be pioneered and the object of intense research is a new development in American Law: Embryonic Law.

    Father Clifford Stevens
    Boys Town, Nebraska
    President: The National Organization for Embryonic Law.

  7. S.B. permalink
    July 19, 2009 6:19 pm

    The Supreme Court has said time and time again that stare decisis is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini v. Felton, 521 U.S. 203, 235 (1997). Many examples are found in Chief Justice Rehnquist’s opinion in Payne v. Tennessee, 501 U.S. 808, 828-29 (1991), where Rehnquist catalogued 33 decisions from the previous 20 years that reversed previous Supreme Court decisions on constitutional matters.

    Bottom line: The Supreme Court can and does reverse itself, all the time.


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