Q. Is it possible for Roe to be reversed?
Yes, it is. And, as fundamentally bad constitutional law, it
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
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
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.