If the Democrats Lose Control of the Senate, What Will Happen to Roe v. Wade?

If the Democrats lose control of the Senate (see cite ), what will happen to Roe v. Wade?
Roe v. Wade is hanging by a thread as it is, with the centrists in the court leaning in both directions. Plus it is the Senate that has the power of Advice and Consent over the Presidents nominees (for this reason, the Democrats were probably right to focus their attention on holding on to the Senate instead of regaining the House).

So what is going to happen now? Does anyone know? Does anyone even care?


If the Democrats lose control of the Senate by enough that the Republicans can force a cloture vote and kill any filibuster attempts, then it’s certainly possible that Bush may get an appointment on the high court.

Sure, it’s possible. And I don’t see it as a bad thing. I am pro-life, but I recognize the rule of law. I would have prerferred that the issue be left to the states, rather than the Supreme Court discovering a federal constitutional right to abortion as part and parcel with the right to privacy. So – I don’t care, if by “don’t care” you mean “unalarmed at the prospect.”

  • Rick

Absolutely nothing. The pro-abortion lobby is too powerful yet for RvW to be overturned any time soon. There’s a gradual drifting in this nation towards a more pro-life stance (I think it’s about 50/50 now), but even if the trend continues, it’ll be a good while before attempting to throw RvW out the window will be anything short of futile. Of course, that’s just my opinion. I could be wrong. :slight_smile:


In the short term, maybe nothing would happen.

Supreme Court Justices aren’t blind to politics, though they might purport to be. Reports have said that Justices Stevens and Ginsburg have, despite dubious health, been hanging in there and avoiding any retirement plans if they could make it until an administration and Congress more likely to appoint successors with whom they could see eye to eye was in place.

The Supreme Court also tends to dislike explicitly reversing its own precedent (thus supporting the self-regarding fiction that its entire body of precedent has built up by accretion a self-consistent, comprehensible, and impartial set of rules). <Roe> was a murky enough decision, though, that a Court disinclined to support it could probably finesse its way to narrowing it without the embarrassment of repudiating it (for instance, the whole “trimester” concept could be de-emphasized as not constitutionally-based).

Another factor to consider is that a one or two seat Republican majority would by no means guarantee confirmation of a notably conservative S.C. nominee. There are Republicans and Republicans, and to assume that the G.O.P. would vote on a party line to support a perceived red meat conservative judge is to ignore the possibility of (a) honest dissent in the ranks; (b) the appeal of showboating as a maverick (some G.O.P. faithful would level this charge at McCain/Jeffords); and © disinclination by Republican senators from moderate/liberal states to be seen as voting “against women” on a litmus test issue. (Of course, presumably a Democrat or two could likewise defect and vote to confirm, but esp. with the Dems. out of Presidential power, one might expect a particularly strong push to maintain party discipline in such a frontal confrontation with Bush).

Also, who is a red meat conservative? The G.O.P. thought they might have one with Souter, but has been repeatedly disappointed by him (and others) who, as the G.O.P. types sardonically put it, “grew in office” and adopted a much more middle of the road judicial approach.

Though the OP doesn’t raise the issue, I’ll do a slight hijack and note that if <Roe> were overturned or limited, the interesting issue would be seeing what happened at the State level, as of course the S.C. would not be “making abortion illegal” but rather disclaiming power to ban abortion regulation by States. I think some States still have their pre-<Roe> abortion limits/prohibitions on the books (and unenforced, obviously); others don’t. There would be sudden attention in probably every state to legislating/litigating the issues if the S.C. returned power to the States; many states would almost certainly and immediately act to affirm the legality of abortion (think N.E., Oregon); others might impose or re-animate limits. Conceiveably (okay, it’s not a funny subject), these limits would in turn end back up in the Court (especially if the Court initially took the much more likely approach of equivocating or partially rescinding <Roe> rather than reversing outright.

I doubt that Roe will be overturned, for reasons already given by other posters. Although I’m pro-choice, I dislike Roe, because it’s such blatant abuse of judicial powers. It’s a mighty good law, but passing laws is not the job of Scotus.

OTOH Roe serves the Republican Party, IMHO. If Roe were overturned, abortion might become the most vital issue for a candidate, and Republicans would be stuck with a minority pro-life position. If I’m right about Roe being good for Republicans, and if Republican Senators and Presidents also see it this way, then they may not be eager to appoint anti-Roe justices.

Yeah: most pro-choice people don’t seem to realize that Roe pretty much killed their own movement prematurely, even though it left things in a dangerous flux. While I don’t disagree with the decision per se on the merits (I don’t see it as lawmaking, but rather protecting people’s rights from irrational state invasion) The real fight should be over the legislatures, state by state. Winning in the Court simply avoids that important fight, hurts state’s rights, and maddens everyone.

ABC News/Washington Post; January 22, 2001

On Roe v. Wade Anniversary, Most Americans Oppose Most Abortions

New York, NY – Twenty-eight years after the U.S. Supreme Court made
abortion legal, although some Americans support abortion in very rare
circumstances, most Americans oppose the overwhelming number of abortions.

Generally, 59 percent say abortion should be legal in all or most cases, a
number that’s held fairly steady the last several years – however a
majority opposes legal abortion if it’s performed solely to end an
unwanted pregnancy, which constitutes most abortions.

Indeed, views on abortion run a spectrum. At one end, eight in 10 or more
say abortion should be legal to preserve the mother’s life or health, or
when the pregnancy was caused by rape or incest. At the other end, 55
percent say abortion should be illegal “when the woman is not married and
does not want the baby.” That most Americans oppose most abortions has
been constant for many years.

I really don’t think Roe v. Wade is in any danger of being overturned.

The President can only nominate candidates for SCOTUS if a sitting justice retires or dies, and a thin republican majority in the US Senate (if that even happens) won’t make the confirmation hearings any less brutal for candidates.

Keep in mind that “Republican” doesn’t necessarily mean “pro-life.”

That said, I think Roe v. Wade was one of the most egregious examples of judicial abuse in the history of the United States.

I personally don’t think that abortion should be banned, but it should have been done properly, through legislative action.

Roe v. Wade is a crappy decision any way you look at it.

That would be just ducky. Every state in the Union would do nothing but contentiously debate abortion in their legislatures from here on in. What a recipe for good government.

My take is that many Americans are suffering from “controversy fatigue” and are tired of the whole bitter, divisive dispute. That plust the increasing emphasis on individual liberties by conservatives raises charges of hypocricy when this issue is brought up.

Besides, this is supposed to be a different world post-9/11.

At the risk of sounding like Revenge of the Grammar Police, can I please request that the preferred terms for both sides be used by both sides in any such argument.

I know I’m not the only poster around here who is against people having abortions but also against governments having the power to forbid them from doing so. It’s “pro-choice” not “pro-abortion” for a reason.


I dissent.

[This post was originally a fear mongering rant of some size. I’ve decided to cut it short(er) for purposes of civility.]

First of all, if we can believe anything this President tells us, then we have to believe he is serious about his repeatedly stated intent (and attempts–see Charles Pickering) to place “strict constructionists” on the federal bench.

“Strict constructionist” is one hell of a loaded term. In the past, it has been used to justify the hopefully forever dead concepts of nullification and segregation. Future Chief Justice Rhenquist once defined it as “generally not… favorably inclined toward claims of either criminal defendants or civil rights plaintiffs.”

For twenty-two of the past thirty-four years the attempt has been made to pack the courts with strict constructionists. How many more do you think conservatives need before they have enough weight to make whatever they want stick? What do you think they want?

And on the legislative side, I personally witnessed the Republican sharks circling at the outset of this 107th Congress, and fought my ass off to get away with what we’ve got left. There are over a dozen bills–all still very much alive and awaiting the opportunity to be passed–which would in some fashion restrict a woman’s right to choose. Right now, H.R. 478 sits in the Senate Judiciary Committee after having already passed the House.

(In case you think I’m kidding, type “abortion” into this search page, but be sure to set the number of documents to be retrieved at about 125 instead of 50.)

I’m convinced the anti-abortion segment of Congress is gonna go for it this time. They may even find themselves in control of a lame-duck majority with all this legislation already laid out for them, with no threat of voter backlash for two whole years and Jesse Helms and Strom Thurmond just crossing days off their calendars. Pro-choice Republicans can be threatened with shitty committee assignments next session if they fail to toe the line. And the American people have been successfully distracted by the war-puppet as well.

If the Republicans win back their majority, and in particular Missouri, there won’t be a more perfect time to go for it than at the end of this session and in the first six months or so of the next.

And they’ve got a good chance of pulling something off which will be difficult if not impossible to reverse. Those pro-choicers who sit back and say, “it’ll never happen” have absolutely no idea how many thousands of people, how many millions of dollars, how many countless hours are spent to prevent having this right taken away from us, every single day of every damned year. I know it because I’ve seen it and I’ve participated in it.

It’s a war, and my side is on the verge of losing it.

But that’s just the thing that a return to the states would solve. There are some issues that the country has a working consensus on. And those issues are ones that politicians have to vote for or against.

The trouble with RvW is that there is no real cost to political posturing by either pro-life or pro-choice politicians. No one except the radicals really care who’s pro-life or who’s pro-choice, since it doesn’t matter. But suppose that if you elected a pro-life legislature, and they actually banned abortion. Suddenly people who don’t really care that much about the abortion shouting match might care very much.

If pro-life pols were actually ABLE to ban abortion, many of them would suddenly find that they don’t exactly want to ban abortion.

I’m not interested in how pro-slavery Democrats defined the term, “strict constructionist” 150 years ago, nor how Nixon defined it 30 years ago. (Nor do I consider John Dean reliable.)

I am interested in what George Bush means by the term today. AFAIK what he means is someone who will follow the Constitution and not abuse her judicial power to make law.

Great. I assume that means you’re in favor of immediately dismantling the Air Force, december? Ain’t no Air Force in the Constitution. Musta been one of them damn liberal judges from the 60s that created the Air Force.

Shees, that “follow the Constitution” rhetoric is such complete, beg-the-question tripe.

You are correct. mkinty. I ought to have written a strict counstruction judge is one who fairly interprets the Constitution AND fairly interprets the laws, rather than enact one’s political preference.

Hence, Bush v. Gore.

You beat me to it, Polycarp. Agreed! At the very least, if one chooses to use an inflammatory term like pro-abortion (which many pro-choice individuals certainly are not), then you should use inflammatory terms for the opposing side, such as “anti-choice”. Rude, yes, but at least not so crudely partisan.


And there would be no end to the shouting. My point is that as bitter as the dispute has been for the past 30 years, it’s a pale shadow of what would happen if RvW was overturned. Legislatures in all 50 states would erupt in angry fignts as bill after bill was introduced to ban, restrict, protect, make exceptions, and overturn. Efforts would be made to amend state constitutions, and of course all this would be played out on the federal level as well. The U.S. would be an ever-shifting patchwork of states with varying abortion laws and every election would be a referendum on abortion (more than they already are). And that’s not to mention what would happem down on a human level.

My use of “pro-abortion” rather than “pro-choice” was deliberate. If I’d meant to refer to those who were pro-choice, I would have said so. I was specifically referring to the extreme end of the spectrum embodied by groups such as NOW and NARAL - people who associate the ability to get an abortion with empowerment. I believe these people are more accurately described by “pro-abortion” than “pro-choice”, as they make it a point to discourage traditional family structures and denigrate those women who choose to be stay-at-home mothers. I would hardly call these people “pro-choice”, as they only approve of the “choice” when it suits their preferences. These groups form the lobbyists who would sooner die than see RvW get overturned, and these are the groups more likely to prevent it from happening.


While I’m not sure that I agree with this assessment - if that would be the case, why don’t we see this on a federal level currently? - I don’t really see a problem with it if it were the case. For one thing, any tumultuousness would settle down eventually in most places. I imagine many states - the midwest, for example - would skew pretty pro-life. Others - California, New York - would be decidedly pro-choice. And others would waffle back and forth for awhile before settling down somewhere. In time, people for whom this was really an issue would leave states where they didn’t approve of the law and move somewhere more in-tune with their personal beliefs.

I think this would be a much more ideal situation. The federal government tries to homogenize the states too much. Some things should definitely be standardized, but others - like abortion - shouldn’t be. Or else we should just drop the whole charade, trash the consitution, and rewrite something that proclaims us a big giant blob of indistinguishable “territories” with identical laws.