Is It a “Sure Thing” That Roe v. Wade Will Be Overturned?

 No and yes.  How’s that for a legalistic answer?

But it’s a realistic – and probable – forecast of the Mississippi abortion case before the U.S. Supreme Court

Most Conservative observers, to be sure, don’t expect an ambiguous outcome.  And they have a point.  The Court’s make-up strongly suggests that 6 0f the 9 justices oppose the legal underpinnings of the fifty year old ruling – serious legal scholars - many on the left - concur.  Roe v. Wade was indeed based upon the specious conclusion that abortion was protected by the U.S. Constitution.  This view was fortified by the addition of Justice Comey to the Court, lessening the need for the support of Chief Justice Roberts who has proven to be undependable on other high-profile cases (such as Obamacare).

Yet the apparent majority may not hold on a straight up and down vote.  Why not?  It is a myth that judges consistently ignore public opinion when fashioning rulings.  This is definitely the case when courts perceive that a decision will be challenged by significant opposition.  For instance, Brown v. Board of Education, outlawing school segregation, was issued as a deceptive unanimous decision by the US. Supreme Court.  Those on the bench who would have been in the minority were persuade that unanimity would accord the decision with more legitimacy for the American public.

A perception of legitimacy mattered then as it does now – the Chief Judge is particularly attuned to bolstering that concept.  Without an aura of legitimacy, the Court’s authority will vanish and its pronouncements ignored.  Think of the Dred Scott decision of 150 years ago. 

Abortion may not inflame America in the same way that the issue of slavery did then, but it certainly generates high passions on both sides with, polls show, half of the public for and half against.

Does the Supreme Court want to contribute to the damaging politicization already affecting the country?

Of course, in a legal vacuum, the Court could reach the sound judgment and toss out Roe and its Casey modifications.  But because we are not so situated, it will not.

That’s not to say that abortion rights will survive as a reality.  They will not.  Instead, the Roberts Court will side-step the question of whether the Roe decision penned by Justice Harry Blackman improperly found state proscription on abortions to be unconstitutional.

There are several ways, I believe, for the Court to gut Roe while leaving the form in place.  Simply rule that, since that case was issued in 1973, medical science has shown that human life in the womb starts not at some arbitrary week of pregnancy (becomes “viable”), but begins at the moment the egg is fertilized.  Thus, the Court can reason, Roe is not overruled as such, it has simply become outdated.    

That approach won’t appease the abortion advocates but it should dampen the ardor of their anger.  If the Roe decision is allowed to stand, it could well be used to permit termination of the unborn baby in extraordinary circumstances, for instance, of pregnancy caused by rape or incest.  Such  exceptions are already broadly accepted.

Pro-lifers will understand that banning and restricting abortions is once again a realistic option at the state level.

That’s a decision which will serve both the law and the public in