# How would Roe V. Wade be overturned? **URL:** \ **Category:** Factual Questions\ **Created:** [October 17, 2005, 6:52pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634 "2005-10-17T18:52:21Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![Reyemile](https://avatars.discourse-cdn.com/v4/letter/r/46a35a/32.png) [@Reyemile](https://boards.straightdope.com/u/Reyemile)\ **Post date:** [October 17, 2005, 6:52pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/1 "2005-10-17T18:52:21Z")
My understanding of the Supreme Court is that they do not issue rulings out of the blue, they only issue rulings on specific cases. So how would a person or entity go about getting the Roe V. Wade issue re-heard? Could a state sue the federal government to try and re-insitute it’s anti-abortion laws? Would it have to be a private organization suing a state to get anti-abortion measures put on a ballot? Or would it have to be something like a state ignoring the previous Supreme Court ruling and enforcing their anti-choice laws until they got sued and appealed it up to the SCOTUS? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [October 17, 2005, 7:06pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/2 "2005-10-17T19:06:53Z")
> [@Reyemile](#): > > My understanding of the Supreme Court is that they do not issue rulings out of the blue, they only issue rulings on specific cases. So how would a person or entity go about getting the Roe V. Wade issue re-heard? > > Could a state sue the federal government to try and re-insitute it’s anti-abortion laws? Would it have to be a private organization suing a state to get anti-abortion measures put on a ballot? Or would it have to be something like a state ignoring the previous Supreme Court ruling and enforcing their anti-choice laws until they got sued and appealed it up to the SCOTUS? Presumably, a case would arrive before the court in which the Court could decide not to apply the result of \*Roe v. Wade \* to the facts of the case. For example, there is in Ohio currently a law being litigated regarding parental notice of abortions by a child. If the issue reached the Supreme Court, they could, in the process of deciding the legality under the Constitution of such a law, refuse to apply _Roe v. Wade_ any longer. For an example of this sort of decision, read _Brown v. Board of Education_, in which the Court decided no longer to apply the decision reached in _Plessy_ (seperate but equal is ok). ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 17, 2005, 7:46pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/3 "2005-10-17T19:46:44Z")
But \*Brown \* explicitly ordered the integration of schools. Would your example mean that Roe was no longer valid and that states could pass laws making abortion illegal? ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [October 17, 2005, 8:16pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/4 "2005-10-17T20:16:22Z")
Norma McCorvey, AKA Jane Roe, [petitioned](http://www.usatoday.com/news/washington/2005-01-19-court-roe_x.htm) SCOTUS earlier this year to reconsider _Roe_. I’m assuming the petition was rejected, as I can’t find anything indicating it was accepted by the Court. Seemed like more of a publicity stunt than anything else. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [October 17, 2005, 9:27pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/5 "2005-10-17T21:27:31Z")
> [@John Mace](#): > > But \*Brown \* explicitly ordered the integration of schools. > > Would your example mean that Roe was no longer valid and that states could pass laws making abortion illegal? It would mean that the states could proceed without feeling inhibited by the language of Roe. Of course, it would depend upon what replaced Roe for analysis by the Court. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [October 17, 2005, 9:53pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/6 "2005-10-17T21:53:59Z")
State X passes abortion law clearly at odds with Roe. Citizen of State X sues State X in U.S. District Court of State X on the basis that said law violates her federal consitutional rights and she wants an abortion. Case makes its way to SCOTUS, which then rejects Roe as wrongly decided because of 1,2,3,4 . . . ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [October 17, 2005, 9:55pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/7 "2005-10-17T21:55:26Z")
> [@whole bean](#): > > State X passes abortion law clearly at odds with Roe. Citizen of State X sues State X in U.S. District Court of State X on the basis that said law violates her federal consitutional rights and she wants an abortion. Case makes its way to SCOTUS, which then rejects Roe as wrongly decided because of 1,2,3,4 . . . To clarify, I believe the A.G. of state X would be the named defendant. If I am wrong, I’m sure someone will be along shortly to correct/castrate me. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [October 17, 2005, 10:01pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/8 "2005-10-17T22:01:37Z")
> [@DSYoungEsq](#): > > Presumably, a case would arrive before the court in which the Court could decide not to apply the result of \*Roe v. Wade \* to the facts of the case. For example, there is in Ohio currently a law being litigated regarding parental notice of abortions by a child. If the issue reached the Supreme Court, they could, in the process of deciding the legality under the Constitution of such a law, refuse to apply _Roe v. Wade_ any longer. > > For an example of this sort of decision, read _Brown v. Board of Education_, in which the Court decided no longer to apply the decision reached in _Plessy_ (seperate but equal is ok). If the issue was as narrow as parental consent, wouldn’t any other part of the opinion qualify as dicta. IOW, it’s my understanding the Court narrowly tailors decisions. Hell sometimes, it’s hard to figure out what the decision is and what’s dicta. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 17, 2005, 10:47pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/9 "2005-10-17T22:47:00Z")
> [@whole bean](#): > > To clarify, I believe the A.G. of state X would be the named defendant. If I am wrong, I’m sure someone will be along shortly to correct/castrate me. Depends on how the suit proceeds. Citing examples from gay rights law, since I happen to be familiar with cases in that field using each type, it could be a case where the action names the State _qua_ state (e.g., _Lawrence v Texas_), the Attorney General as chief enforcer of state laws (_Bowers v Hardwick_), or the Governor as head of state (_Romer v Evans_). There may well be other potential defendants. I suspect the same array can be identified for abortion law (I can think of examples for two cases), but I’m not adequately familiar with the array of cases to do the whole gamut. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [October 17, 2005, 11:08pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/10 "2005-10-17T23:08:50Z")
_Roe v. Wade_ named the district attorney of every county in Texas as defendants. Wade was the D.A. of the first county listed. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [October 17, 2005, 11:09pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/11 "2005-10-17T23:09:02Z")
> [@whole bean](#): > > If the issue was as narrow as parental consent, wouldn’t any other part of the opinion qualify as dicta. IOW, it’s my understanding the Court narrowly tailors decisions. Hell sometimes, it’s hard to figure out what the decision is and what’s dicta. If the argument is that the State’s parental consent statute violated what _Planned Parenthood v. Casey_ said was required under _Roe_ and SCOTUS comes back and says “y’know what? This seems like a pefect time to get rid of that whole _Roe_ nonsense, so we hereby toss _Roe_,” it certainly violates the general principle of narrowly tailoring decisions that the court usually follows. That wouldn’t really qualify as dicta, though, since it’s the basis of the Court’s decision. The best parallel I can think of, which you almost have to be a con law/federal jurisdiction dork to appreciate, is the decision in _Erie Railroad Co. v. Tompkins_, 304 U.S. 64 (1938). The argument being made was merely one of statutory construction, but Brandeis’ opinion went far beyond that and addressed an argument that wasn’t even made by counsel and overturned a 96 year old precedent on constitutional grounds. The Court saw an opportunity to get rid of a troublesome precedent, that of _Swift v. Tyson,_ 41 U.S. 1 (1842), and dropped a huge legal bomb when it was given the boot. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [October 18, 2005, 6:53pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/12 "2005-10-18T18:53:42Z")
> [@pravnik](#): > > If the argument is that the State’s parental consent statute violated what _Planned Parenthood v. Casey_ said was required under _Roe_ and SCOTUS comes back and says “y’know what? This seems like a pefect time to get rid of that whole _Roe_ nonsense, so we hereby toss _Roe_,” it certainly violates the general principle of narrowly tailoring decisions that the court usually follows. That wouldn’t really qualify as dicta, though, since it’s the basis of the Court’s decision. > > The best parallel I can think of, which you almost have to be a con law/federal jurisdiction dork to appreciate, is the decision in _Erie Railroad Co. v. Tompkins_, 304 U.S. 64 (1938). The argument being made was merely one of statutory construction, but Brandeis’ opinion went far beyond that and addressed an argument that wasn’t even made by counsel and overturned a 96 year old precedent on constitutional grounds. The Court saw an opportunity to get rid of a troublesome precedent, that of _Swift v. Tyson,_ 41 U.S. 1 (1842), and dropped a huge legal bomb when it was given the boot. It is, however, a much more likely way for Roe to be done away with. In light of the current status of Roe as “settled” law, state laws that directly challenge it are going to be few and far between. ---
**Author:** ![633squadron](https://avatars.discourse-cdn.com/v4/letter/6/ee59a6/32.png) [@633squadron](https://boards.straightdope.com/u/633squadron)\ **Post date:** [October 18, 2005, 7:57pm UTC](https://boards.straightdope.com/t/how-would-roe-v-wade-be-overturned/326634/13 "2005-10-18T19:57:56Z")
> [@pravnik](#): > > but Brandeis’ opinion went far beyond that and addressed an argument that wasn’t even made by counsel and overturned a 96 year old precedent on constitutional grounds. The Court saw an opportunity to get rid of a troublesome precedent, that of _Swift v. Tyson,_ 41 U.S. 1 (1842), and dropped a huge legal bomb when it was given the boot. As a note, the “Dred Scott” decision was similar. The SCOTUS _could have_ decided it on very narrow grounds. As I remember, it wasn’t clear that the people bringing suit had any legal right to do so. But, Chief Justice Roger Taney decided to “put to bed” the whole slavery question. Hah! Instead, his ruling threw out most of the compromises that Congress had enacted over the past years, and further polarized extreme elements in both the North and South. This precedent of outright lameness on the part of SCOTUS makes me continually nervous about the idea of judicial activism. It sounds nice when it helps protect peoples’ rights, but it can always be used a very dumb way.