How Could Roe v. Wade Be Overturned? The Supreme Court Has Blocked Attempts Before
One of the biggest promises the world is waiting to see is if president-elect Donald Trump will actually seek to overturn of Roe v. Wade. The landmark Supreme Court case made abortion legal at the federal level, and if the law is overturned, the decision to legalize abortion would go back to individual states. If individual states decided to make abortion illegal, it would greatly reduce access to safe, legal abortions for Americans. The big question is, how could Roe v. Wade be overturned? Unfortunately, the answer isn't exactly a simple one.
In 1973, the Supreme Court protected a woman's right under the constitution through the passing of the Roe v. Wade case. For about as long as abortion has been legal in the U.S., anti-abortion groups have lobbied for it to be undone. Arguably the threat of president-elect Trump's promise to appoint anti-abortion cabinet members, as well as an anti-abortion Supreme Court judge, has inched Roe closer to the possibility of being overturned. In his recent interview with 60 Minutes, his first since becoming the president-elect, Trump said that if he managed to overturn Roe, thereby sending the choice to legalize back to each individual state, he understood that that meant women "would have to go to another state" for abortions.
While Trump argued that marriage equality had been settled by the Supreme Court, and "it's law," — therefore it didn't matter what his personal beliefs were. He apparently does not feel the same way about reproductive rights and has said several times that he believes his appointment of an anti-abortion judge to the Supreme Court would get Roe overturned "automatically."
This isn't exactly true, however. In order for any case to be overturned, Roe included, it needs to be brought before all the justices in the form of a court case that was sent through the very long and complicated lower court system. It's not exactly easy for a ruling to be overturned — mostly because it means that the Supreme Court would have to overrule itself.
There are several factors the court has to look at if they're considering overturning something, including: "the workability of the rule, the extent to which the public has relied on the rule, relevant changes in legal doctrine, and changes in facts or perceptions of facts." The court also added, that in order to overrule a case, there must be "rest on some special reason over and above the belief that a prior case was wrongly decided," according to the New York Times.
These statements came in 1992, during the Planned Parenthood v. Casey case, when the state of Pennsylvania passed The Pennsylvania Abortion Control Act, which inhibited abortion access and imposed restrictions on medical providers. One of the provisions of the act was slashed (including a provision that required a woman's spouse to be notified if she sought an abortion), but the rest were kept.
It was the first case that brought up the question of overturning Roe. Many thought this would be possible because eight of the justices had been Republican-appointed, and the most recent two (appointed by the first President Bush) had replaced two liberal justices. While the case didn't succeed in getting Roe overturned, it definitely changed it: individual states were able to put some restrictions on abortion — like waiting periods or parental notification in the case of minors. Prior to Casey, the provisions of Roe had not permitted states to interfere.
Depending on who Trump appoints to the Supreme Court, the climate could be very similar as new discussions of overturning Roe begin again. Since the Supreme Court is currently waiting on its ninth justice to be appointed, it so happens that there are four democratic justices and four republican justices — and if Trump follows through on appointing a conservative justice, that could tip the scale.
But if the current justices' voting histories are any consolation, it's extremely unlikely that they have enough votes to overturn Roe. The opportunity to enforce abortion restrictions came up earlier this year, in fact, with the case of Whole Woman's Health v. Hellerstedt, and the swing vote justice, Anthony Kennedy (who had previously voted to overturn Roe, only to later change his mind), voted with the four justices who would be in support of upholding Roe.
As it stands right now, the current Supreme Court doesn't appear interested in overturning Roe. With an anti-abortion conservative justice added during Trump's presidency, that will just begin to shift the balance. The only circumstance that could expedite this shift would be if another justice dies during the next four years, and Trump is then in the position to appoint two justices, as Vox pointed out.
And, even if the justices on the court were interested in overturning Roe, they can't just show up to court one day and say, "Hey, let's get rid of Roe v. Wade today." They have to wait until a case presents the opportunity — and the court only takes on a very small number of cases, and there are very strict rules governing which cases they hear.
What's more likely is that, instead of Roe being overturned entirely, its provisions might be picked apart, which would effectively weaken Roe and make abortions less accessible and possibly even less safe. The quest for the 20-week abortion ban has come up against the Senate frequently, and will no doubt continue to throughout Trump's presidency.
While it may not be that Roe v. Wade is completely overturned in the next four years, it's not impossible or even unlikely that attempts will be made to dismantle it piece by piece, which could have many of the effects people are concerned about if the ruling was to be overturned. Trump may well not achieve his ultimate goal of making abortion illegal in the U.S. during his presidency, but abortion is still very much under threat, and what will happen if the ruling is weakened in the next four years is anyone's guess.