If Roe V. Wade Is Overturned, Abortion Access Will Not Be The Only Human Right At Risk
This is even bigger than abortion.
Joe Benning / Shutterstock The Supreme Court expected decision to overturn Roe V. Wade could have consequences that extend far beyond abortion access.
The indication that the Supreme Court of the United States intends to overturn Roe V. Wade, comes at a watershed moment in SCOTUS’s history.
If this decision goes through, and it looks like it will, it will set women’s reproductive rights back by 50 years and damage the court's credibility and control over all other rights.
What would the overturning of Roe V. Wade mean for other Supreme Court rulings?
This would not be the first time that the Supreme Court has overturned one of its own decisions, but the practice is rare, with the court only reversing precedent like this in barely half a percent of its over 25,000 decisions made over more than 200 years.
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While SCOTUS has overturned precedent before, it is rare and usually justified by the fact that the court’s original decision is no longer viable, either because of changing circumstances or because of other, conflicting decisions made by the court.
Without getting into specifics, this is all to say that this sort of decision doesn’t just happen there is usually a strong and often unavoidable reason for it. One of the most famous examples of this is Brown V. Board of Education in which the court overturned its own original ruling on “separate but equal” in order to strike down segregation.
So, if the court is going to damage the concept of stare decisis (standing by precedent) to overturn a previous ruling like this, what is the reason?
Why might the court be overturning Roe V. Wade?
According to the leaked draft obtained by Politico, Justice Alito wrote, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Notably, the draft indicates a shift in the court’s stance on “unenumerated rights,” or rights that are protected by the constitution but not explicitly stated in it.
According to Justice Alito, such rights must be deeply rooted in the country’s “history and tradition,” and apparently, the right to receive an abortion is not.
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Justice Alito allegedly wrote of their justification in the draft, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision....”
What will the court strike down next?
If the decision goes through, which it isn’t expected to do until June, then it begs the question, what’s next? Since the court seems to be in the mood to strike down foundational precedents which have been law for 50 years, what could be next on the conservative judicial chopping block?
In the document, it appears that Alito attempts to limit the scope of the court’s decision on abortion, saying, “We emphasize that our decision concerns the constitutional right to abortion and no other right.”
The reality is that, no matter what Alito writes in the draft, legal action speaks louder than words and if the right to have an abortion is struck down because it isn’t explicitly mentioned in the constitution and “is not deeply rooted in the Nation’s history and traditions,” then the court has basically laid the foundational justification to attack an American’s right to marry whomever they wish.
After all, that isn’t explicitly protected under the constitution…
If this decision is finalized, then the court will have proven that it is willing to overturn 50 years of precedent, leaving little that would be safe from the gavel of the Supreme Court.
Nothing is sacred anymore.
Dan O'Reilly is a writer who covers news, politics, and social justice. Follow him on Twitter.