Question List

Q. Is it possible for Roe to be reversed?

Yes, it is. And, as fundamentally bad constitutional law, it must be.

Historically, erroneous Supreme Court decisions have been corrected in two basic ways: Either by amendment to the U.S. Constitution or by the Court's own subsequent decisions.

Article V of the U.S. Constitution provides that amendments can be proposed either by Congress or by a convention, and any proposed amendments can be ratified either by the state legislatures or by special conventions in the states. "Super-majority" levels of approval are required in proposing (two-thirds) and in ratifying (three-fourths).

Over the years, 27 amendments have been added to the Constitution. All were proposed by Congress, with 26 amendments being ratified by the state legislatures and one, the Twenty-First Amendment, by state conventions.

The convention method of proposing amendments was not the route used in the successful amendments to date. Nevertheless, the method represents a way for the states to take needed amendment action when Congress refuses or fails to act, especially to curb excesses and abuses.

Needless to say, the formal amendment process is difficult, as it was intended to be. The more straightforward approach is for the Court to correct its own mistakes. As Chief Justice William Rehnquist noted in his separate opinion in Casey, "Over the past 21 years, for example, the Court has overruled in whole or in part 34 of its previous constitutional decisions.1" The Court likewise should correct Roe, for principled as well as practical reasons. Justice Antonin Scalia has observed that, with neither constitutional text nor accepted legal traditions on which to rely, the Court, as a legal institution, has no way to resolve the abortion issue.2 "If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed."3

In time, protection for the right to life of the unborn must be secured by amending the U.S. Constitution. Copyright © 2018 NCHLA