Could a Romney administration see the overturning of Roe v. Wade?

It's 'possible to likely' that, depending on Supreme Court workings, a Romney administration could result in the end of Roe v. Wade.

By

Rachael Rettner, MyHealthNewsDaily

Thu, Oct 25 2012 at 12:29 PM

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Photo: Mark Fischer/Flickr

If former Gov. Mitt Romney wins this year's presidential election, there is a realistic chance that Roe v. Wade — the Supreme Court decision that protected a woman's right to have an abortion — could be overturned under his administration, experts say.

With the justices sitting on the court now, it's very unlikely an abortion case would garner the five votes needed to reverse the ruling, said Harvard Law School assistant professor I. Glenn Cohen, co-director of the school's Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. But Associate Justice Ruth Bader Ginsburg, a left-leaning judge who is 79, could retire during the next administration, allowing the president to nominate a more conservative-minded judge. Another justice could retire as well.

If that happens, it's "possible to likely" that the court would have enough votes to overturn the 1973 ruling, Cohen said.

For the Roe v. Wade decision to be overturned, a case dealing with abortion rights would have to reach the Supreme Court, and there are cases in the lower courts that could easily make their way to the nation's top court, Cohen said.

Even if a case does not directly address the legality of abortion — but instead, for example, centers on whether a pregnant woman should be required to view an ultrasound image of the fetus before an abortion — the court could use the case as an opportunity to rule on Roe v. Wade as a whole, Cohen said.

If Roe v. Wade were overturned, laws regarding abortion would be decided by each state. Some states, including Kentucky, Louisiana, Mississippi and South Dakota already have already passed laws that would make abortion illegal immediately in the event Roe v. Wade were overturned. Other states, including California, Hawaii and Maine, have laws protecting abortion rights if the ruling is reversed. Other states would have to pass new laws to address abortion rights, Cohen said.

It's not clear whether it would be constitutional for Mississippi, for example, to try to prohibit its residents from having a legal abortion in California, though such cross-state medical procedures would be difficult to control, Cohen said. Even if women could legally go to another state for an abortion, such travel is not always feasible, Cohen said. "It's not a great solution for women," he said.

Without replacing a judge, the court could still "chip away" at Roe vs. Wade, Cohen said. Currently, abortions in most states are legal until the fetus is viable — meaning it could theoretically live outside the mother — a stage reached around 23 weeks into pregnancy. However, about a dozen states have passed legislation that aims to make abortion illegal after 20 weeks on the basis that a fetus could feel pain at this point — a disputed claim.

Because Roe vs. Wade does not address the pain of the fetus, such cases present a new "interest" that the court did not previously consider, Cohen said. As such, the cases present an opportunity for members of the court to narrow the time period of a legal abortion by about three weeks, Cohen said.

However, the Supreme Court decides which cases to take — about 80 cases are heard each year — and it's not certain the Court would pick an abortion case during in the next administration.

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Comments: 2

hodi@att.net Oct 28 2012 at 11:00 AM

Rowe Verses Wade. I would like to address the Fundamentalist Republicans about your stand on Rowe Verses Wade: Rowe verses Wade is one of the pillars and foundations of the Democratic Party, and all women of both parties that care about a woman’s right to choose. From personal point I cannot condone either Church or State interfering with a woman’s right to choose. A woman should have a right to a legal abortion. This is not to say that life is not precious. It is not to say that the decision

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to have an abortion does not carry with it awesome, terrifying, long term consequences. It is a ghost that can haunt forever. I base my opinion on three elements: The first I have already stated, woman’s rights. The second and third are very personal. When I was two years old women did not have the legal right to an abortion. As a consequence abortions were done in the shadow-lands of guilt using whatever means they had at hand. In the case I am most familiar with it happened at home. It was my mother at the receiving end of a coat hanger. The “doctor” performing the procedure was my father (a mail carrier.) They did not realize that I had gotten into the bedroom and saw what was going on. There was blood and pain and cries of agony and despair. I carried those images in repressed memory for most of my life, only coming to grips with that internal pain through therapy. No family or woman should have to go through that. There should be a legal avenue with proper medical care available to them. That is what Rowe Verse Wade gave to women. You might ask why my parents did such a thing. I can only guess; but I do have some insight through another event that now helps me understand one reason a woman might choose to abort a pregnancy. It is called poverty. Let me explain, years after the home abortion we had a female cat ready to have kittens. During the giving of birth to a large number of kittens the mother cat started to eat some of the kittens. I asked my mother why? My mother explained that maybe the mother cat realized she did not have enough milk to keep all the kittens alive so she had to choose which should live and which would have to die so the remaining kittens would have a chance at the life we all hold so precious. As for the mother cat eating the kittens she said rather than just letting them die, eating them would give the mother cat the energy she needed to produce the milk for the remaining kittens. I said that is cruel. She replied, “That is life my son.” In closing I say this; if a mother cat has the right to make a decision of which kittens should die so the other kittens can live, then why is it that a human mother shouldn’t be able to make the same choice? I can anticipate the Fundamentalist response, why not adoption? In answer, it should be a woman’s choice on her beliefs, not yours, not The Church, not The State, not your God, but hers and hers alone.