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You Don’t Have to Overrule Roe to Overrule Roe

Photo by Supermac1961 | CC BY 2.0

A second Supreme Court nomination by President Trump does not necessarily mean Roe v. Wade will be overturned.  At least not formally.  Instead, look to see the Supreme Court continue to acknowledge the validity of Roe as precedent while effectively overruling it with judicially minimal decisions.  This has been one of the characteristics of the Roberts Court, using judicial minimalism to limit precedents, and it will continue with reproductive rights.

Anticipation of Trump’s second appointment to the Supreme Court in reference to reproductive rights has completely missed a major point.  Groups supportive of reproductive rights have talked of the importance of Roe, and pro-choice senators such as Susan Collins have said they will not support a Justice who opposes Roe.  Look to see Senate confirmation questions ask  nominees about Roe as a precedent.  Either a nominee will refuse to comment or express fidelity to precedent.  Upholding Roe formally is important but not critical to abortion rights.  Simply upholding Roe does not mean reproductive rights are secure.

Roe v. Wade is the 1973 Supreme Court decision declaring that the Constitution encompasses  a right to privacy, which  also includes a right of a woman to terminate her pregnancy.  Yet Roe never granted an absolute right to terminate a pregnancy.  Under the original decision Justice Blackmun  created a trimester system where the later in the term of pregnancy it was the more interest the government had in regulating abortions to protect the health of the mother or fetus. Abortion rights were greatest in the first trimester, receding with fetal development. Later as modified by Justice O’Connor in Planned Parenthood v. Casey, which formally upheld Roe, the trimester was abandoned and replaced with the “undue burden” test.  The government could regulate abortions so long as they did not place an undue burden on the fundamental right to terminate a pregnancy.

The question under the original Roe and the subsequent undue burden test is when is a burden undue.  Over time and without formally overruling Roe, the Supreme Court has upheld third term “partial birth” abortions.  But it has also endorsed rules requiring twenty-four-hour waiting periods. The Court has upheld rules baring the use of public  funds or facilities to provide abortions or counsel about it as an option, parental notification, to perform fetal viability tests at 20 weeks, and limits on where second term abortions may occur.  Just recently this term, the Court on First Amendment grounds struck down a law that would have required sham pregnancy centers to inform clients about state abortion services.   All of these restrictions already have limited abortion rights for many , especially the poor, but they were considered constitutional.

Yes, the Supreme and lower federal courts have struck down more extreme laws, but even under Roe and Casey the Court upheld many restrictions on abortion, chipping away at a precedent that was never an absolute unqualified right to start with.  Look to see a Roberts Court with a second  Trump appointment do the same.  With Kennedy’s departure the Chief Justice will become the new  swing vote.  He has already demonstrated a willingness to swing somewhat for the sake of preserving  the image of the Supreme Court–he did that by providing the crucial fifth vote to uphold Obamacare.

But even while upholding that law formally, he struck down a key provision of it regarding the expansion of Medicaid, and also placed new constitutional limits on the powers of the federal government to regulate abortion.    While in some areas of law–such as campaign finance and union rights–the Court has explicitly rejected and overturned precedent, Chief Justice Roberts and his court have perfected the fine art of judicial minimalism to slowing limit and confine precedents.  Unwittingly, moderate legal scholars such as Cass Sunstein who advocate for judicial minimalism  have given the Court the tools to erode precedent without formally overturning it.

This is the future of where abortion rights may be headed.  Justices such as Alito and Thomas will want to formally overrule Roe but Roberts will be a break on that–endorsing the precedent and the new restriction at the same time.

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David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.

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