Fiorella Beccaglia Opinion Editor
There is a lot of talk that the new Supreme Court, with two justices appointed by President Trump, might overturn the landmark case of Roe v. Wade. Supporters of abortion rights are rightfully nervous, but they might not be exactly correct about what to be nervous about. It’s a shorthand to say Roe v. Wade can be overruled, but that isn’t the only nor the most likely outcome.
One of the most extreme and, therefore, the least likely scenario, is the Supreme Court flipping Roe around. Roe bases on a constitutional right to abortion, so the Court could say the Constitution prohibits abortion in the interest of protecting fetal life. That would suggest that fetal life is like any other human life, so that taking it away would be murder. If the Supreme Court were to go in that highly unlikely direction, abortion would be illegal across the U.S.
Another extreme outcome would be for the Court to do away with the right to privacy established in a case called Griswold v. Connecticut in 1965. Roe v. Wade is founded on that right to privacy. If this right goes, it would do away with the basis for Roe and, therefore, flip the issue back to the states and allow them to regulate abortion on their own terms. However, the right to privacy has been the foundation for many other rights, such as LGBTQ+ rights and the right to contraception. Thus, it is highly unlikely that the Court would go after such fundamental right.
A third possibility, is that the Supreme Court could overrule Roe v. Wade. In a post-Roe society, one still would still have a right to privacy, but that does not include a constitutional right to abortion. States would be free to do as they pleased. Some advocacy groups claim that about 20 states could deem abortion entirely illegal. Nevertheless, that probably won’t happen anytime soon. Chief Justice John Roberts is an incrementalist, he takes things step by step, and I don’t think he’ll rationalize the issue and decide to overrule Roe v. Wade, at least right away.
The fourth and most likely scenario, one I’ve read the most about, is for the Supreme Court to withdraw Roe v. Wade very gradually. The Court has already imposed some restrictions on abortion. In 1989, a 5 to 4 majority upheld a ban on performing abortions in public facilities, in 2007 it upheld a ban on partial-birth abortion, and in 2018 medication abortion was blocked in Arkansas. Much more severe restrictions on abortion rights are a perfectly imaginable outcome with this new, conservatively-leaning Supreme Court.
In the Planned Parenthood v. Casey case of 1992, the Court ruled that states cannot impose an “undue burden” on the woman’s right to have an abortion. That’s a fairly pliable standard and it wouldn’t be hard for the Court to keep it in place, but interpret it differently and claim states could impose such limitations. It’s hard to predict what life for women seeking abortions in conservative states would look like. What’s for sure, is that women in these states, and especially poor women, will have a harder chance to get abortions as each successive restriction is sustained by a Supreme Court that now has a solidly conservative majority.
Although most Americans nowadays accept the fact that the Supreme Court has the power of judicial review—that is, to be the ultimate interpreters of the Constitution and deem any law incompatible with the Constitution— it is a tough debate of whether it really should. Given the Constitution’s commitment to a representative form of government, how can life-tenured, unelected federal judges have the power to invalidate the actions of the more democratic branches of government? That is some food for thought.