OPINION: This article may contain commentary which reflects the author's opinion.
A Constitutional law professor has predicted that the U.S. Supreme Court is “likely to overrule Roe v. Wade.”
In an op-ed for the Daily Inter Lake, Frederick Morton, executive fellow at the School of Public Policy and professor emeritus at the University of Calgary, spoke about the looming abortion ruling.
Last month, the Supreme Court heard oral arguments in the most important abortion case in nearly three decades. The nation’s highest court is reviewing a Mississippi law that would ban nearly all abortions after 15 weeks.
“First, the Constitution is silent on the subject of abortion. The word does not appear anywhere in the document. The constitutional right to an abortion is a judicial creation. In Roe, the majority declared that such a right is protected by the right to privacy. These words also do not appear anywhere in the Constitution,” Morton wrote.
The “right to privacy” was first articulated by the Court in the 1965 case of Griswold v. Connecticut. Where does this right come from? According to the seven-judge majority, it is implied by the “penumbras” and “emanations” of other explicitly protected rights, such as the right against “unreasonable searches and seizures.” This is a plausible argument, but hardly conclusive. Which explains why two justices dissented, arguing that this was simply too weak a legal basis to support the judicial creation of a new constitutional right.
Eight years later, the two dissenters in Roe refused to strike down the Texas abortion law for the same reasons. They described the majority’s rulings as “an exercise in raw judicial power,” arguing that there is “nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action.”
Based on their comments during oral arguments six the current nine justices — all of whom have been appointed by Republican presidents — now appear to be ready to accept the dissenters’ arguments in these earlier precedents.
This is the second factual issue that needs clarifying. Much media commentary has asserted that it would be unacceptable for the Supreme Court to overrule one of its own precedents. This view has been given added salience by Justice Sotomayor’s rhetorical question about what might happen if the Court were to overrule Roe v. Wade: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
During oral arguments, Justice Clarence Thomas asked a pointed question that should have pro-abortion liberals worried.
”Does a mother have a right to ingest drugs and harm a pre-viable baby? Can the state bring child neglect charges against the mother?“ he asked.
The attorney representing Jackson Women’s Health Organization, the organization attempting to overturn the law, had this to say: “That’s not what this case is about, but a woman has a right to make choices about her body.”
Thomas has long been a target of liberal pro-abortion activists, especially given he’s arguably one of the most pro-life justices to ever sit on the bench.
Chief Justice John Roberts and Justice Brett Kavanaugh might be the deciding votes on the case.
CNN reported that Roberts and Kavanaugh might be looking at a “middle ground,” where they may not support completely reversing Roe v Wade:
Roberts suggested the court could look at Mississippi’s 15-week law as a new viability standard, rather than Roe and Casey, which is over 20 weeks. And Kavanaugh, meanwhile, has asked to confirm that Mississippi isn’t asking the court to outright prohibit abortion, a way to say it’s not overturning Roe while limiting access.
Kavanaugh asked another set of questions suggesting he is inclined to rule with Mississippi and even go as far as reverse Roe.
In broad strokes, he sums up Mississippi’s argument asking the court to interpret the Constitution as neutral on abortion and to return the issue to state or Congress. He asked Rikelman to respond.
Then he asked a question about stare decisis, ticking off several “consequential” decisions — including on school segregation, voting rights, and business regulations — where the court overturned precedent.
CNN also noted how Kavanaugh may be open to limiting abortion:
Justice Brett Kavanaugh asked a question that seems aimed at the arguments made by abortion-rights advocates that a decision overturning Roe v. Wade would be a step towards the Supreme Court eventually issuing a decision that would outlaw abortion nationwide.
Kavanaugh asked Mississippi Solicitor General Scott Stewart to confirm that his state is not making an argument that the court should prohibit abortion.
Mississippi is arguing that the Constitution is silent or neutral on the abortion question. Kavanaugh asked Stewart to confirm, which he did.
Kavanaugh suggested that a majority of states – or at least many states – would maintain abortion access.
“The Constitution is neither pro-life nor pro-choice … and leaves the issue to the people to resolve in the democratic process,” Kavanaugh said.