By Wanda Franz, Ph.D.

Dear Friends,

The 1973 Supreme Court decisions, Roe v. Wade and Doe v. Bolton gave women in the United States the Constitutional right to have an abortion for all nine months of the pregnancy for any reason at all. Only the Supreme Court can reverse itself to make it possible for the legislatures to pass bills that outlaw abortion.

President Trump ran on the promise to appoint judges to the Supreme Court who would respect the Constitution and provide a means for correcting the damage done by the 1973 abortion decisions. He has upheld that promise and has appointed strong, constitutionally-oriented judges to the Supreme Court.

This has triggered the anticipated reactions from both sides of the abortion debate. The pro-life supporters have cheered the potential for overturning the abortion decisions. The pro-abortion side has responded by introducing laws to legalize abortion through the entire nine months of the pregnancy. This legislation has passed in New York, and is being considered by a number of other states.

Of course, lawyers on both sides of the issue disagree among themselves. There are at least two complicating factors that make it difficult to anticipate with accuracy how the Supreme Court will rule on abortion:
● stare decisis, a judicial doctrine under which the Court follows prior decisions when deciding a case on similar facts, and
● undue burden standard, which the Court has adopted, which prevents laws that have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.

It is unlikely that the Supreme Court will rule to reverse the 1973 abortion decisions any time soon.

Court-watchers point out that, on paper, the Supreme Court has a 5 to 4 conservative split. In theory, it is possible to overturn a previous Supreme Court decision with this one-vote advantage. However, historically, it generally takes full support of all nine members of the Court to directly overturn a decision under the doctrine of stare decisis.

In most past cases where the Supreme Court has overturned a previous decision, the Court made use of an incremental process. The bad precedent is undermined by many smaller steps developed in numerous Court decisions. Eventually, the precedent becomes a hollow shell of itself and is effectively overturned.

Only one of the current Justices has stated in a judicial opinion that he would overturn Roe v. Wade and Doe v. Bolton. That is Justice Clarence Thomas. He recently wrote an opinion in the Court’s decision failing to uphold Alabama’s “dismemberment abortion” law. The undue burden standard was used by the Court in this case to overturn the law because the law had the “effect of burdening abortions even though it did not prevent them.” He attacked the undue burden standard saying it is an “aberration of constitutional law,” as it is being used in abortion cases. Justice Thomas concluded his opinion by expressing his disappointment that the case did not provide the opportunity to address the “demonstrably erroneous ‘undue burden’ standard.”

Clearly, our work is still not done. The Court is not yet prepared to overturn the 1973 abortion decisions. We must continue to pass pro-life legislation, while we work to change hearts and minds and wait on the Court.

Please send a donation today to West Virginians for Life. Send $100 or $50 or $250 or $35. We are in a battle for life. Please mail your contribution now, or you can donate online at wvforlife.org/donate. It’s all up to us – and to you.