By H. Harrison Coleman IV '22
In the aftermath of Justice Ruth Bader Ginsburg’s death, many, myself included, felt shock, sadness, and uncertainty about the futures of the Supreme Court and the country. We did not have to wait long to get an idea of what the future might bring. President Trump announced his nomination to fill Justice Ginsburg’s seat only a week after her death: Judge Amy Coney Barrett.
Barrett represents the sum of all the left’s fears: she is an extremely religious conservative with extensive ties to far-right political groups. This nomination has left many panicking about the fate of one of the most consequential Supreme Court decisions in living memory: Roe vs. Wade.
Roe vs. Wade was a 1973 Supreme Court decision that ruled abortion was a fundamental right under the Fourteenth Amendment of the Constitution. This ruling struck down many laws on the state and federal level and resulted in abortions becoming legal across the whole country.
Despite having been on the books for nearly 50 years, Roe remains a controversial subject, with many advocating for the ruling to be struck down. Should Barrett be nominated, the Court will be the most conservative it has been for decades, with conservatives holding six seats to the liberals’ three. Despite the general attitudes of the left regarding Roe, I don’t believe it is doomed.
For one, the Supreme Court is not in the habit of going back and rewriting itself, especially for cases as old as Roe. Of the roughly 10,000 cases decided by the Court, only 236 decisions have ever been overturned. Half of the cases the Court has ever overwritten were originally decided fewer than 20 years before the overturning. Roe, having been settled for 47 years, is statistically unlikely to ever be overturned.
Additionally, the Supreme Court has a habit of trying to reflect the popular opinions of the country. Take the 2003 decision Lawrence vs. Texas, in which the Court affirmed that private homosexual activity (criminalized by some states as sodomy) was protected by the same part of the Constitution that protects abortion: the due process clause of the Fourteenth Amendment.
Lawrence, as a case, fell in line with popular opinion: in 2003, most Americans believed that having intercourse with a member of the same sex should not be illegal, with 49% saying that homosexuality, by itself, should be accepted, compared to 46% who felt it should be discouraged. (It is worth mentioning that another Court case involving homosexuality, 2015’s Obergefell vs. Hodges, which legalized same-sex marriage, also fell in line with popular opinion).
Roe has consistently been popular, with a slight majority of 54% of Americans agreeing with the decision in 1975, compared to 66% today. Any nullification of the popular ruling would result in a huge blow to the Court’s legitimacy.
Conservatives have controlled the Court in all 47 years that Roe has stood. Even before Justice Ginsberg died, five of the nine Justices were appointed by Republican presidents, and the Supreme Court never overturned Roe. In fact, Roe was decided by a 6-3 conservative Court. One has to question why none of the five Republican presidents, or numerous Republican-controlled Congresses that had been elected since 1973, have ever made serious attempts to overturn Roe.
A theory that found its origins on left-leaning online communities posits that Roe vs. Wade is actually supported by the Republican Party’s elite members as a way to motivate Evangelical voters to come out to the polls.
Evangelical Christians are known for their social conservatism and overwhelmingly vote Republican up and down the ballot. This theory hypothesizes that if Roe were overturned, Republicans would stand to lose at the polls, with Evangelicals no longer having a rallying cry encouraging them to turn out to vote. On the flip side, overturning Roe might actually compel more Democrats to vote, as Roe is extremely popular within the party, with approval currently standing as 82% among Democratic voters, leaving the Republicans with a lot to lose should Roe actually be overturned.
However, should Roe vs. Wade be overturned, it will by no means be the end of the road for pro-choice groups and advocates. Former Vice President Joe Biden, the Democratic nominee for president, has repeatedly mentioned that he would codify Roe into US law, should the Supreme Court overturn it and he be elected president. Despite past opposition to the ruling, Biden has liberalized on the issue in recent decades. In a town hall held in early October, Biden has promised to make abortion protections for women “the law of the land.”