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What would overturning Roe v. Wade mean for other Supreme Court decisions?

Travis Braidwood.png
Posted at 6:18 PM, May 03, 2022
and last updated 2022-05-03 19:47:29-04

While more and more states craft their own versions of Texas' SB 8 — colloquially known as the Heartbeat Law — Monday's leaked Supreme Court majority draft opinion still came as a shock to many, for several reasons.

Firstly, because Supreme Court leaks are rare.

"It has happened in the past, but not in the present day, that we have a leak of this magnitude," said KRIS 6 News political analyst David Smith.

Secondly, because it's also unusual for the Supreme Court to reverse itself.

"It's not unheard of to overturn precedent," he said. "It's uncommon because precedent is established as the touchstone — the foundational aspect of law — and to continually overturn yourself eliminates the trust and the power the court has. And so this is a monumental event — not only because of the case at hand, but because of the almost-50-year precedent that Roe v. Wade is."

The opinion didn't come from a vacuum — it stems from the High Court's hearing of Dobbs v. Jackson Women's Health Organization, a Mississippi case which challenges state law banning abortions after a woman reaches her 15th week of pregnancy.

Roe v. Wade, the case which grants constitutional rights to women seeking abortion and protects them from criminal prosecution, has been on the books for almost 50 years.

Liberal and conservative Supreme Court justices alike referred to the case as settled precedent — an important and established ruling that judges look to in order to help them decide similar cases — in their confirmation hearings, but the draft indicates the High Court is poised to overturn the right.

So if Roe v. Wade can be overturned — does that mean all SCOTUS decisions are vulnerable?

"That was my first concern, too," said Texas A&M University-Kingsville constitutional law professor Travis Braidwood. "As soon as I got a copy that I could . . . search for cases, I searched for those exact same things."

Justice Samuel Alito specifies it will not, in the draft — specifically in relation to Obergefell v. Hodges; Lawrence v. Texas; and Griswold v. Connecticut, all cases dealing with due process and a person's fundamental rights to privacy.

"We emphasize that our decision concerns the constitutional right to abortion and no other right," he writes. "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

"Basically what he's saying is 'Just trust us, we won't disturb this,' but they have disturbed this because this is sort of the same line of cases (as the previous three)," Braidwood said.

Roe v. Wade is a constitutional right, as opposed to a law. Whereas laws are born of Congress and upheld by the judicial system, constitutional rights derive their power from the Constitution — the original law of the land.

"That's why it's really scary to think of where this will go," Braidwood said. "Because the word 'pregnancy' or 'abortion' or 'contraceptive' or 'sex,' — like, those don't appear in the constitution. They're just created as an extension of this due process 14th amendment guarantee, and so if you just suddenly on a whim say 'This one was completely and wrongly decided,' well, it had also been precedent for 50 years — if that can be so easily toppled then where does that end?"