Roe Is Legally Vulnerable
With the nomination of Samuel Alito to the U.S. Supreme Court, it may be well to be begin a sober conversation about the mechanics and practicalities of reversing the landmark Roe v. Wade decision. Assuming that new Chief Justice John Roberts votes like his predecessor, William Rhenquist; and assuming that Alito is confirmed to replace Sandra Day O’Connor – we have presumably moved a bit closer to reversing the decision which legalized abortion in this nation.
But even with an extra vote, it appears that we will still be one vote short of reversing Roe. However, it does seem likely that various restrictions, like an end to Partial Birth Abortions, may be within reach. If the Senate does not dawdle, we might even soon see a serious tightening of the nefarious “health” exception created by the Supreme Court back in the time of Roe.
With John Paul Stevens at 85 years of age, and Ruth Bader Ginsburg’s health failing – it is realistic to begin talking about Roe being overcome.
In fact, I read a fascinating article while back about the implications of these court changes, and the legal underpinnings of Roe. One pro-choice law professor was quoted in the article as saying that “Roe was terribly reasoned.” Scott Powe added, “I think there’s some requirement under the Constitution that if you cannot explain a decision and its relationship with legal materials, it’s not a valid decision.”
Jack Balkin, a Yale Law School professor, concurred that Roe is vulnerable. The rights outlined in the decision have never been codified by Congress – a situation radically different from the fallout of the important Brown v. Board of Education decision. “[The civil liberties articulated in] Brown truly [became] law – really becomes something everyone’s on board with – after the Civil Rights Act of 1964,” Balkin said.
Ironically, these pro-choice scholars believe Roe v. Wade continues to come under such intense scrutiny and controversy because of the imperial method by which the Supreme Court imposed it on the nation. And, despite some 35 years of best effort – the Abortion Lobby has yet to persuade America that it should embrace the mechanized destruction of our inheritance.