# If the Supreme Court overturns Roe v. Wade ... **URL:** \ **Category:** Great Debates\ **Created:** [March 7, 2006, 6:26am UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349 "2006-03-07T06:26:48Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Polerius](https://avatars.discourse-cdn.com/v4/letter/p/d78d45/32.png) [@Polerius](https://boards.straightdope.com/u/Polerius)\ **Post date:** [March 7, 2006, 6:26am UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/1 "2006-03-07T06:26:48Z")
From a practical point of view, if the Supreme Court overturns Roe v. Wade, how will it do it? That is, what legalistic machanisms can it use to overturn it? Are there any legal maneuvers that enable the court to overturn Roe, without, in essence, saying that the 1973 decision was wrong? Has the Supreme Court ever admitted that a past decision was wrong? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [March 7, 2006, 6:35am UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/2 "2006-03-07T06:35:14Z")
Precedent gets changed all the time, and sometimes it does get tossed entirely. It’s not quite “admitting the Court was wrong” when it’s a different case decided by different justices, so there’s not quite the same level of mea culpa involved. _Brown v. Board of Ed_ overturned _Plessy v. Ferguson_, for example. I suppose the Court could reason that the right to privacy does not cover abortion, or that (more simply) a right to abortion is simply not found in the Constitution. There are probably several other lines of reasoning that a more legally expert Doper could explain. ---
**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:** [March 7, 2006, 6:58am UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/3 "2006-03-07T06:58:55Z")
> [@Polerius](#): > > From a practical point of view, if the Supreme Court overturns Roe v. Wade, how will it do it? That is, what legalistic machanisms can it use to overturn it? It’s not really a legislative mechanism, since the SCOTUS is the judicial branch, but there are events happening right that could cause a challenge to _Roe_. South Dakota just passed a law outlawing abortion. That law will be challenged, no doubt, in a federal court. With 99.99% certainty, that court will overturn the SD law (which clearly violates _Roe_, and a lower court just toss out SCOUTS precedent). Then, if the SD Attorney General decides to do so, it will work its way up the appeals courts. Eventually, it will reach the SCOTUS. Once it reaches the SCOUTS, one of two things could happen. The SCOTUS could decide to not take the case, letting the lower ruling stand. If, however, at least 4 justices decide that the case merits a SCOTUS reivew, then it gets one. > [@](#): > > Are there any legal maneuvers that enable the court to overturn Roe, without, in essence, saying that the 1973 decision was wrong? I honestly don’t know. Lawyers are capable of many things that us mere mortals cannot fathom. 🙂 > [@](#): > > Has the Supreme Court ever admitted that a past decision was wrong? Yep. One of the most famous cases is _Brown v The Board of Education of Topeka_, which overturned _Plessy v Ferguson_. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 7, 2006, 10:50am UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/4 "2006-03-07T10:50:57Z")
> [@Polerius](#): > > From a practical point of view, if the Supreme Court overturns Roe v. Wade, how will it do it? That is, what legalistic machanisms can it use to overturn it? The SCOTUS can rule however they want… thats uh, pretty much the legal mechanism. If it’s not enshrined in the constitution or one of the amendments then the court gets to decide constitutionality, and has and can reverse itself at will. > [@](#): > > Are there any legal maneuvers that enable the court to overturn Roe, without, in essence, saying that the 1973 decision was wrong? Well, it doesn’t really matter. The court is allowed to be wrong, it’s allowed to be whatever it wants. If the SCOTUS wasn’t 9 people but instead 1 person they’d be probably the most powerful person in government. There isn’t anything they are bound by when making their decisions, even things that are clearly stated in the constitution the SCOTUS could theoretically “interpret differently.” ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 7, 2006, 12:05pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/5 "2006-03-07T12:05:58Z")
> [@Martin Hyde](#): > > The SCOTUS can rule however they want… thats uh, pretty much the legal mechanism. If it’s not enshrined in the constitution or one of the amendments then the court gets to decide constitutionality, and has and can reverse itself at will. > > Well, it doesn’t really matter. The court is allowed to be wrong, it’s allowed to be whatever it wants. If the SCOTUS wasn’t 9 people but instead 1 person they’d be probably the most powerful person in government. There isn’t anything they are bound by when making their decisions, even things that are clearly stated in the constitution the SCOTUS could theoretically “interpret differently.” should they wish to sidestep directly pissing in blackmun’s face, they need only address the viability issue with reference to some finding by a legislative body (surely onewill step up to the plate) that advances in medecine have rendered the trimester model obsolete, and by making viability a conjectural issue, choose to call the close ones in favor of the fetus, so maybe they’ll let you have an abortion if it’s still a blastosphere, thanks for nuthin. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 7, 2006, 12:16pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/6 "2006-03-07T12:16:40Z")
> [@alaricthegoth](#): > > should they wish to sidestep directly pissing in blackmun’s face, they need only address the viability issue with reference to some finding by a legislative body (surely onewill step up to the plate) that advances in medecine have rendered the trimester model obsolete, and by making viability a conjectural issue, choose to call the close ones in favor of the fetus, so maybe they’ll let you have an abortion if it’s still a blastosphere, thanks for nuthin. The SCOTUS has already made the trimester framework obsolete, in Planned Parenthood v. Casey the court (O’Connor, Kennedy, and Souter actually) recognized by then (early 1990s) medical science had advanced to the point that the trimester framework wasn’t really all that logical. The court basically made the point then that the state could regulate from the point of viability, however the court also made it quite clear that viability is something that is medically determined, not legally. So a state can’t say, “well, now that medical science makes 22 weeks viable in 80% of cases, that is where our line is going to be” ostensibly to comply with the Casey decision if the state wished to prohibit abortion earlier than the third trimester it’d have to construct a law that insured it was restricting once genuine medical viability had been reached. Of course this was the plurality decision (the one carrying precendential weight) but the SCOTUS didn’t come to a majority decision in Casey. From what I’ve seen states have in general just stuck to the three trimester framework because in the third trimester there isn’t really any doubt. Plus 22 weeks is considered the extreme limit for viability and it is difficult to regulate stuff around limits like that. ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 7, 2006, 12:17pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/7 "2006-03-07T12:17:10Z")
- Lawyers are capable of many things that us mere mortals cannot fathom.\* who knows what evil lurks in the hearts of men, now that the shadow is off the air… ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 7, 2006, 12:22pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/8 "2006-03-07T12:22:57Z")
> [@Martin Hyde](#): > > The SCOTUS has already made the trimester framework obsolete, in Planned Parenthood v. Casey the court (O’Connor, Kennedy, and Souter actually) recognized by then (early 1990s) medical science had advanced to the point that the trimester framework wasn’t really all that logical. The court basically made the point then that the state could regulate from the point of viability, however the court also made it quite clear that viability is something that is medically determined, not legally. So a state can’t say, “well, now that medical science makes 22 weeks viable in 80% of cases, that is where our line is going to be” ostensibly to comply with the Casey decision if the state wished to prohibit abortion earlier than the third trimester it’d have to construct a law that insured it was restricting once genuine medical viability had been reached. Of course this was the plurality decision (the one carrying precendential weight) but the SCOTUS didn’t come to a majority decision in Casey. > > From what I’ve seen states have in general just stuck to the three trimester framework because in the third trimester there isn’t really any doubt. Plus 22 weeks is considered the extreme limit for viability and it is difficult to regulate stuff around limits like that. _genuine medical viability_ that’s where the vigorish is… they hold hearings. Dr x, y and z. testify that it is impossible to say with medical certainty that a post blastosphere embryo would be impossible to nurture (culture??) outside the womb. The leg. then passes law with preamble, "it being impossible to rule out post blastospheric viabiity, we hereby, etc. scotus says: hey , we ain’t no activists. We defers to the leg. you can have all the abortions you want in the first week of pregnancy. Lot’s of luck with that drug store pregnancy test, little In other words, when you’re late, you are REALLY late…,… ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 7, 2006, 12:27pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/9 "2006-03-07T12:27:14Z")
no less an informed party than Kate Michelman, who’s business it is to know, said on russert that she expects roe to fall. ---
**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:** [March 7, 2006, 4:47pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/10 "2006-03-07T16:47:51Z")
> [@alaricthegoth](#): > > no less an informed party than Kate Michelman, who’s business it is to know, said on russert that she expects roe to fall. You mean no less a biased party? She has every reason to want Americans to think that Roe is going to be overturned and no reason to want us not to think so. She and her group has been crying wolf at every Republican SCOTUS appointee as long as I can recall. Remember when Scouter’s appointment was going to mean the end of legal abortion in the US? They even said this about O’Conner, when she was nominated, IIRC. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [March 7, 2006, 6:07pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/11 "2006-03-07T18:07:20Z")
> [@John Mace](#): > > You mean no less a biased party? She has every reason to want Americans to think that Roe is going to be overturned and no reason to want us not to think so. She and her group has been crying wolf at every Republican SCOTUS appointee as long as I can recall. Remember when Scouter’s appointment was going to mean the end of legal abortion in the US? They even said this about O’Conner, when she was nominated, IIRC. Which of those two were socially conservative Catholics? Unlike, say, the last three out of four, or is it four out of five Republican nominees to the Court? (Methinks I detect a pattern here. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [March 7, 2006, 6:44pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/12 "2006-03-07T18:44:41Z")
> [@John Mace](#): > > Once it reaches the SCOUTS, one of two things could happen. Alls I know is, if they overturn Roe v. Wade, I ain’t buying any more of their damn cookies. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 7, 2006, 6:55pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/13 "2006-03-07T18:55:05Z")
> [@Evil Captor](#): > > Methinks I detect a pattern here. Now, now. It’s only court-packing if it’s the\* lib’ruls\* doing it. Same goes for judicial activism, don’tcha know. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [March 7, 2006, 7:25pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/14 "2006-03-07T19:25:47Z")
> [@John Mace](#): > > Remember when Scouter’s appointment was going to mean the end of legal abortion in the US? To be fair, that was a much more reasonable surmise given available facts than the actualality would have been. –Cliffy ---
**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:** [March 7, 2006, 7:38pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/15 "2006-03-07T19:38:53Z")
> [@Miller](#): > > Alls I know is, if they overturn Roe v. Wade, I ain’t buying any more of their damn cookies. Damn! I saw that in the preview, and meant to change it. Obviously, I didn’t. Please don’t punish the little girl next door for the actions of our highest court. 🙂 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [March 7, 2006, 7:41pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/16 "2006-03-07T19:41:33Z")
> [@John Mace](#): > > Once it reaches the SCOUTS, one of two things could happen. > > … > > Remember when Scouter’s appointment was going to mean the end of legal abortion in the US? So, can only Scouters be appointed to the SCOUTS? 😉 ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 7, 2006, 8:43pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/17 "2006-03-07T20:43:27Z")
> [@Evil Captor](#): > > Which of those two were socially conservative Catholics? Please expound, because it seems you are saying that being Catholic is somehow relevant to a discussion of a person’s judicial philosophy. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 7, 2006, 8:48pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/18 "2006-03-07T20:48:17Z")
You misinterpret that, Hamlet. One’s judicial philosophy is irrelevant if it’s overridden by one’s religious beliefs. \*That’s \* the worry, and it would be the same worry if the case were about warfare and the court were being packed with Quakers. ---
**Author:** ![sqweels](https://avatars.discourse-cdn.com/v4/letter/s/f19dbf/32.png) [@sqweels](https://boards.straightdope.com/u/sqweels)\ **Post date:** [March 7, 2006, 8:52pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/19 "2006-03-07T20:52:27Z")
> [@Hamlet](#): > > Please expound, because it seems you are saying that being Catholic is somehow relevant to a discussion of a person’s judicial philosophy. The hell, you say. Since when is a person’s religion relevent to their philosophy? ---
**Author:** ![Polerius](https://avatars.discourse-cdn.com/v4/letter/p/d78d45/32.png) [@Polerius](https://boards.straightdope.com/u/Polerius)\ **Post date:** [March 7, 2006, 9:33pm UTC](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349/20 "2006-03-07T21:33:37Z")
I wonder if an actual lawyer will show up to answer the question. [Next page](https://boards.straightdope.com/t/if-the-supreme-court-overturns-roe-v-wade/347349.md?page=2)