Commentary Magazine

No One Is Overturning Roe v. Wade Anytime Soon

AP Photo/Rich Pedroncelli

As Noah has pointed out, the left has made a fetish of abortion, as though it were a positive good, like the polio vaccine, instead of something that should be “safe, legal, and rare.”

With the nomination of Brett Kavanaugh, the left is now howling that his joining the Supreme Court would mean the end of Roe v. Wade and that “millions of women will die.”

This, of course, is nonsense. For one thing, while Kavanaugh is a practicing Roman Catholic, so is the man he would be replacing, Justice Kennedy. So are Chief Justice Roberts and Justices Thomas, Alito, and Sotomayor.  Justice Gorsuch was raised Catholic but now attends the Episcopal Church. Justices Ginsburg, Kagan, and Breyer are Jewish. So the religious balance on the court would be unchanged. Adding Kavanaugh and subtracting Kennedy is a wash.

So even if Kavanaugh were gung-ho on overturning Roe, he couldn’t do it without the help of at least four other justices, none of whom seem in any hurry to do so. As recently as 2016, the court struck down, 5-3, a Texas law whose effect would have been to close down many of the state’s abortion clinics.

What the court has been doing is nibbling away at Roe v. Wade, allowing increasing restrictions, but sustaining Roe. This is strikingly reminiscent of the history of Plessy v. Ferguson (1896), which established the doctrine of separate but equal when it came to segregated state institutions. Plessy was upheld over and over again for almost the next sixty years, but its scope was almost continuously narrowed. For instance, one Southern state had no law school for black students and paid for them to go out of state to attend law school. The Court ruled that that was not separate but equal and the state had to admit black students to its law school or establish a black law school.

Finally, in 1954, the Warren Court ruled in Brown v. Board of Education that separate was inherently unequal and overturned Plessy. And Chief Justice Earl Warren, realizing the political uproar that would ensue, was very careful to make sure that the decision in Brown was 9-0. Chief Justice Roberts would undoubtedly be equally careful to have a large majority of the Court on board before overturning Roe v. Wade.

So, until there are, at the very least, seven justices on the Court willing to overturn it, nothing is going to happen to Roe; except, possibly, further nibbling. With two out of three Americans opposed to overturning Roe, that could well be years from now, if ever. Even then, the Court would have to wait until a suitable case came along. The Court accepts only about two percent of the cases appealed to it each year, and it would be very picky about accepting one that would undoubtedly cause a political firestorm.

So while the left is screaming that the sky is falling, the blue dome of heaven, at least as regards Roe v. Wade, remains firmly in place.

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