3 Questions About Roe V. Wade Answered

In the last post, we looked at the background of the Roe v. Wade decision.  In this post, we look at questions the potential overturning of the case raises for many.

First of all, how can The U.S. Supreme Court overturn a previous decision?  

The Court has in fact overruled bad rulings in the past.  They ruled in 1896, in Plessy v. Ferguson,  that despite the clear intent of the post-Civil War amendments to the Constitution that states had the right to segregate public facilities along race as long as the institutions were “separate but equal.”  The Court overruled this decision with Brown v. Board of Education in 1954.  The Court has the right to overturn what the majority deems was a poor ruling in the first place. 

Second, what happens if Roe is overturned? 

The question of abortion’s legality and/or limits is left to each individual state to decide.  This was the law regarding abortion from when the Constitution was ratified in 1788 and was in effect until 1973.  

It is important to note that the 10th Amendment to the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  In other words, if the Constitution does not explicitly protect a right or prohibit it, then it is left for the states to decide.  This was largely the opinion of the dissenting justices in both Griswold and Roe.  America’s founding fathers wanted the federal government to have limited power and for each state to be a laboratory of democracy.  They felt it important that as many political questions as possible be left to state and local governments so that the people, not the federal government had more say in their lives. 

Third, won’t the overturning of Roe lead to the overturning of rulings in favor of mixed-race marriage and “same-sex marriage”?  

That is doubtful.  Those decisions were based on more than just Griswold.  Moreover, a strong argument can be made from the post-Civil War amendments for upholding mixed-race marriages.  

Roe was bad law based on bad precedent. Even the late progressive Justice Ruth Bader Ginsberg acknowledged that Roe was built on a shaky foundation. Overturning the decision will simply bring the abortion question to state legislatures.  It is not the political-cultural apocalypse that many are making it out to be.