Realistically, can Roe v. Wade be overturned? (the answer is yes, and what to do next).

A friend on tumblr asked me if, realistically, Roe v. Wade can be overturned.

Yes, it can. The Supreme Court has contradicted its past decisions many times in history. Brown v. Board of Education overturned decisions supporting “separate but equal” segregation laws, for example. All that is required for a past decision to be overturned is:

1. A case being brought to the Supreme Court that involves a law that has not yet been challenged, or a challenge to a law that involves new information (new to the court, I mean)


2. A Supreme Court majority willing to make a decision overturning a prior court’s position.

It’s not common. Our Supreme Court has a norm called stare decisis, which means the previous decision stands, in most situations. But when a new situation, new info, or a new law is being examined that creates some tension between past decisions and current reality, the court has to resolve the tension in some way, which can mean weighing in with a new decision.

For example: there are now laws on the books banning abortion at 20 weeks. Ohio just passed one. But the Supreme Court ruled in Roe v. Wade that abortion cannot be banned at any point earlier than viability — that is, when the fetus is developed enough to live outside the womb. That is…definitely later than 20 weeks.

These laws ban abortion prior to fetal viability. Ergo these laws should be ruled unconstitutional. At the very least, they should end up in court.

But if one of these laws does get taken to the Supreme Court and it is defended/approved of by the majority in the Court…the whole principle on which Roe v. Wade was based (that you cannot ban abortion, unless the fetus is viable), is demolished. Just like that.

And that was the goal of these 20-week bans all along.

The first thing you need to do is determine if your state will revert to a legal status of banning abortion if Roe v. Wade is overturned. Numerous states have laws on the books that will immediately ban all abortions in the event of Roe v. Wade being overturned — my state of Illinois among them.

If your state is one of those states, it is time to call your state senator and representatives. Ask them to support a bill that will protect abortion rights in your state in the event that Roe v. Wade is overturned. In IL, we have a bill that is currently seeking to do just that — HB 40. If you are in Illinois, that means you should call your reps about HB 40 and ask them to support it, and do so right now. And keep doing it.

Now, if you do not live in such a state, you should a) call reps for other states where this is a problem (esp if you have an address you can use for a relative who is a constituent), b) donate to Planned Parenthood & the ACLU, and c) call & mail Paul Ryan’s office to emphasize the essentiality of contraceptive and abortive care. You should also support your friends who are working on such initiatives too. Send postcards. Do nice things for each other. And fight fight fight.

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