Roe vs. Wade not in jeopardy, say constitutional law experts

  • Article by: Eric Black
  • Star Tribune
  • April 18, 2007 - 9:32 PM

The U.S. Supreme Court's abortion ruling Wednesday could lay the groundwork for bans on more abortion procedures, but nothing the justices said suggests the court is preparing to reverse the fundamental 34-year-old decision that a woman has a right to have an abortion.

The 5-4 ruling upholding a federal law outlawing certain late term abortions broke new ground but had been expected because of recent appointments to the court.

Two constitutional law experts -- who have opposing attitudes toward the abortion question -- agreed not only that the court might favor further abortion restrictions in the future, but also that the ruling was not a serious blow to Roe vs. Wade.

"It does not put Roe into play," said professor Michael Stokes Paulsen of the University of Minnesota Law School, an abortion opponent.

Said Suzanna Sherry of Vanderbilt Law School, an abortion rights supporter: "There's nothing in this ruling to suggest that the court is going to overrule Roe v. Wade."

Ruling was expected

In 2000, the court voted 5-4 to strike down a Nebraska law forbidding the procedure that abortion opponents call partial-birth abortion, with Justice Anthony Kennedy, who has affirmed Roe vs. Wade, voting to allow the ban. Justice Sandra Day O'Connor voted to strike down the state ban.

When O'Connor retired and was replaced by Justice Samuel Alito, many analysts identified the late-term abortion precedent as one that would be overturned, on the expectation that both Alito and new Chief Justice John Roberts would be sympathetic to such restrictions. Wednesday's ruling fulfilled that expectation, with Kennedy writing for a majority consisting of himself, Antonin Scalia, Clarence Thomas and Bush appointees Roberts and Alito. "The law need not give abortion doctors unfettered choice in the course of their medical practice," he wrote.

In dissent, Justice Ruth Bader Ginsburg wrote that the ruling "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court." She was joined by Stephen Breyer, David Souter and John Paul Stevens.

Paulsen said the outcome was not completely predictable, because the possibility remained that Kennedy, Alito or Roberts would defer to precedent. But that didn't happen Wednesday.

Roe not endangered

Analysts noted in 2006 that the revised court lineup still included five justices who had supported the fundamental ruling in Roe that a woman has a right to abortion, especially in the early stages of a pregnancy. Those five pro-Roe justices, including Kennedy, remain on the court and Roe will stand unless one of them changes their mind or is replaced with a Roe opponent.

Kennedy said nothing to indicate that he was changing his position on Roe. His majority opinion says that the government can regulate abortion -- including outlawing the late-term procedure -- as long as any restrictions do not place an undue burden on a woman's right to choose an abortion, Sherry said.

What is changed?

But the court did for the first time suggest that considerations of "morality" and the "inhumanity" of particular abortion procedures were legitimate reasons for the government to forbid them, Sherry said. That, she said, seems to invite new state or federal laws banning specific procedures on grounds of "morality" or "inhumanity."

But the opinion says that such laws would still have to be consistent with preserving a woman's right to have an abortion: One reason the court cited for approving a ban on the late-term procedure is that it is seldom used.

Sherry's reading of the balance struck within the opinion was that the court would not outlaw the abortion procedures most widely used in the first trimester of a pregnancy, when 85 to 90 percent of abortions are performed.

Graphic language

Paulsen agreed. And he agreed that Kennedy is heavily invested in his previous votes to uphold the fundamental ruling in Roe. "I can't see him going against that," he said.

But, Paulsen added, the language used by Kennedy to describe particular procedures suggested to him that "the pro-life movement's strategy ... has moved Kennedy to see what abortion entails."The first twenty-some pages of the decision are a graphic, stomach-turning account of abortion procedures," Paulsen said. "These things are weighing on Justice Kennedy, and he is seeing the abortion issue more graphically and less abstractly and theoretically than he had 15 years ago."

Eric Black • 612-673-7294

Eric Black •

© 2018 Star Tribune