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Is Roe v. Wade in danger in a Trump Court?

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Is Roe v. Wade in danger in a Trump Court?

Is Roe v. Wade in danger in a Trump Court?
July 10
15:53 2018

It may come as a surprise to many to learn that retiring Justice Anthony Kennedy was not as much of a swing vote as he was a mostly dependable conservative member of the Supreme Court. However, those rare occasions when he voted with his liberal colleagues were the cause of great controversy: the most notable were Kennedy’s support of the 1964 abortion decision in Roe v. Wade and gay marriage in Obergefell v. Hodges.

The liberal community is now hyperventilating, contending that Brett Kavanaugh – Trump’s pick for SCOTUS – will overturn both Roe V. Wade and Obergefell v. Hodges. Those two issues are being ginned up by Democrats and the greater left-wing community to mount opposition for opposition’s sake. It is not likely that they will be successful in the end.

So, what will that mean in terms of the social issues where Kennedy voted with the liberals? Even though Obergefell v. Hodges was a 5/4 decision, there is zero chance that a future Court will overturn that ruling. In 2015, when that ruling was handed down, 37 states had already legalized gay marriage. Even if the Supreme Court were to reverse its decision to make it a national right, those states – and others – will continue to recognize gay marriage as a states’ rights issue. Furthermore, the opposition to gay marriage among the general public has virtually evaporated.

The issue that has the left most upset is Roe v. Wade. Those mounting the scare campaign leave the impression that abortion is at risk from a quick reversal by the Court. In this theory, the Court would declare abortion on demand to be illegal – making exceptions in certain situations. This is not likely to happen. The Court defended abortion as a woman’s civil right but gives states broad powers to regulate or limit the conditions of abortion.

That fight has been going on since 1964.

Even with a solid conservative majority, it is unlikely that the Court will overturn Roe v. Wade in one fell swoop. It is more likely to approve more restrictions on the procedures that are enacted into law by the various states. There could be such matters as requiring alternative counseling, pushing back the date of fetal viability, outlawing late-term abortions or requiring procedures be performed in certified hospitals.

There are numerous proposals that would limit the availability or desirability of abortions that could be taken up by the Court. None of this can possibly occur in the short run, however. It would take years, maybe decades, for abortion on demand to be essentially eliminated to a few exceptional cases – the most notable three being rape, incest and the life of the mother. If the Supreme Court abandoned Roe v. Wade, there would be years of battle in the state legislatures and the courts – many of which the Supreme Court would be asked to rule upon.

Another thing that may preserve Roe v. Wade with the current makeup of the Court is the very real possibility that one of the conservative justices may vote to preserve the 1973 decision. The most likely prospect is believed to be Chief Justice John Roberts. Should that be the case, a future Trump appointment – should there be one – will incite the same heated abortion debate.

Roe v. Wade may frame much of the public dialogue during the confirmation proceedings, but the real gain for the conservative constitutionalists – including this author – will be the myriad of opinions to be made by the Court over the next half-century.

About Author

Larry Horist

Larry Horist

Larry Horist is a conservative activist with an extensive background in economics, public policy and politics. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman, as well as the White House. He has testified as an expert witness before legislative bodies, including the U. S. Congress, and lectured at major colleges and universities. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He can be reached at lph@thomasandjoyce.com.

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2 Comments

  1. landtax
    landtax July 11, 17:22

    I hope the conservatives can , and other intelligent officials will be able to overturn Roe vs Wade or at least late term abortion (murder of viable infants), abortion on demand, and roll back the time of viability of the baby. Every Bible believing Christian should believe in “right to life” of the child at the moment of conception or before. These are the words of the Lord–{“…BEFORE I FORMED THEE IN THE BELLY I KNEW THEE…” JER. 1:4 KJV. What could be clearer?

    Reply to this comment
  2. MAGA
    MAGA July 11, 18:06

    THAT IS JUST CRAZY SUPPORT OUR PRESIDENT AND BE A REAL AMERICAN!

    Reply to this comment

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