With the election of Donald Trump came a lot of worry and outrage that certain civil rights would be repealed, abolished or destroyed. This week, we begin the “Ask a Trump question” column, where legal experts address the many concerns that have arisen during the two-year presidential campaign cycle.
Will Roe v. Wade be overturned?
This is an excellent question with which many are concerned. More likely than a Supreme Court with Trump appointees overturning Roe v. Wade is that states might pass restrictions on abortion, which could be upheld by a more pro-life court [justices] that does not consider them to be an undue burden on abortion.
A president does not have the authority to overrule a Supreme Court decision; only the Supreme Court itself, a co-equal branch of government with the Executive Branch (led by the president) and the Legislature (House of Representatives + Senate), can do that. What a president can do, subject to the Senate’s consent, is appoint Supreme Court Justices.
Let’s first consider what Roe v. Wade did. In 1973, by a 7-2 decision, the U.S. Supreme Court decided that state laws prohibiting or restricting abortion were in violation of the Due Process Clause of the 14th Amendment because the court inferred a right to privacy based on the “penumbras and emanations” of the First, Fourth and Fifth Amendments. The court said that this constitutional right to privacy had to be balanced with the states’ interests in protecting unborn children, deciding that as a fetus got closer to viability the state’s interest grew stronger. Thus, the Supreme Court decided that state laws could not prohibit or unduly restrict abortion until the third trimester of a pregnancy.
Later, in 1992, there was a strong effort to overturn Roe v. Wade by the case of Planned Parenthood v. Casey, which resulted in a plurality decision (5-4 majority only on upholding Roe v. Wade as modified). In that case, the Supreme Court updated its third trimester rule and replaced it with a rule saying that states could not limit abortion before fetal viability, which, based on medical advancements, could occur at 23 or 24 weeks, or sooner. The duty to inform a spouse before an abortion was rejected as an undue burden. That Supreme Court comprised eight justices appointed by Republicans and only one justice appointed by a Democrat, and yet Roe v. Wade was upheld, largely based on the doctrine of stare decisis (from the Latin phrase Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.”)
Roe v. Wade and its progeny did not make abortion legal, it prohibited states from passing laws making abortion illegal, or otherwise unduly burdening abortion, before fetal viability. In order for that decision to be considered again, a law must be passed by a state or the U.S. Congress that arguably limits or unduly burdens abortions before fetal viability. If that happens, and the new law is challenged on Constitutional grounds, it could eventually come before the Supreme Court again.
Even if President Trump were to appoint three to four conservative justices to the Supreme Court and a case challenging a potentially unconstitutional limit on abortion made its way through the lower courts to the Supreme Court, over several years, the justices might do as the Supreme Court has done before and uphold the precedent created by Roe v. Wade, with a potential update based on any medical advances that would make fetal viability (and a state’s interest based on it) occur sooner than 23 weeks.
If you have a question, email it to firstname.lastname@example.org, subject line: Ask a Trump question, and watch for it to be answered in an upcoming issue.
About the Author: John J. Thyne III is an attorney, real estate broker and professor of law at the Santa Barbara and Ventura Colleges of Law (COL). He owns and operates the Law Offices of John J. Thyne III and Goodwin & Thyne Properties in Ventura and Santa Barbara. Thyne’s specialties include civil litigation, real estate, corporate and entertainment law.
Established in 1969, COL was founded to expand opportunities and broaden access to legal education. An accredited nonprofit institution, COL is regionally accredited by the Western Association of Schools and Colleges Senior College and University Commission (WSCUC) and the Juris Doctor (J.D.) program is accredited by the Committee of Bar Examiners (CBE) of the State Bar of California. For more information, visit www.collegesoflaw.edu