“If this suggestion of personhood is established”
With Justice Kennedy’s retirement, the question on everyone’s mind is whether or not a conservative-controlled Supreme Court will have the legal precedent to overturn the infamous Roe v. Wade, which made abortion legal across all 50 states based on a preposterous reading of the Constitution’s so-called “right to privacy.”
For Roe to be overturned, or, at the very least, chipped away at until being rendered void (the likely outcome), it needs to overcome a major hurdle: stare decisis, which directs the court to look at legal precedent when making decisions. As stated by Justice Gorsuch during his confirmation hearings in reference to Roe, before a judge can rule on any case, they must take a serious look at precedent and go from there. Unfortunately, thanks to Planned Parenthood v. Casey, it is fair to say that the infamous Roe has solid precedent, no matter how flimsy the reasoning.
Though stare decisis should not be the only barometer by which a justice decides a case, it does serve an important purpose; otherwise, the Supreme Court would be a constant game of tug-of-war in which laws are enacted and then thrown out before they can take hold.
With all that said, however, the Supreme Court can overturn precedent if they conclude a past decision was either ill-informed or egregious to the point of requiring special scrutiny, as in the case of Dred Scott, which determined that black people were not persons and had no rights. This is one of the few narrow ways by which Roe v. Wade will finally go into its rightful place in the ash-heap of history. It’s a bleak scenario, for sure, but there is a silver lining, which was ironically provided by Justice Blackmun in the majority opinion for Roe when he pondered what could happen if fetuses were ever deemed “persons” according to the Fourteenth Amendment.
“If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment,” conceded Blackmun in 1973.
Judge Andrew Napolitano concurs Roe shot through the Supreme Court “by declaring the baby in the womb to be a nonperson.” He also agrees that Roe was nearly identical to Dred Scott by denying a baby’s personhood.
In sum, the Supreme Court would have to determine that unborn babies were arguably human beings, which scientific evidence clearly shows, in order for Roe to be struck down.
Since that is unlikely to happen, the best pro-lifers can hope for is a chipping away at Roe until it’s relatively defanged, by giving states the rights to enact whatever anti-abortion measure they wish. It will first begin with the court upholding a state’s 12-20 week abortion ban and then move on to allow a state to ban abortion with exceptions for rape, incest, and the life of the mother.
Obviously, not the best outcome or the most pro-life, but far better than the status quo. As certain pro-life publications have stated, the overturning of Roe is just the beginning in the fight to save America’s soul. Keep fighting.