Law professor predicts Supreme Court will overturn abortion precedent

A number of prominent progressives have expressed their concern that a conservative majority on the Supreme Court could lead to the repeal of Roe v. Wade and its precedent on abortion rights.

For his part, School of Public Policy executive fellow Frederick Morton recently argued that such an outcome is likely in the near future.

“An exercise in raw judicial power”

Morton, who is also a professor emeritus at the University of Calgary, expressed his stance on the topic in a recent column depicting the landmark ruling as one that rests on shaky footing.

The U.S. Supreme Court is currently considering a Mississippi ban on abortion after 15 weeks that directly implicates the Roe precedent.

During oral arguments last month, the court’s conservative wing appeared largely open to acknowledging that the right to abort a pregnancy is not enshrined in the Constitution but was invented in “an exercise in raw judicial power,” as dissenters wrote in the original ruling.

Justice Brett Kavanaugh questioned why the abortion dispute should not be left to the people to decide at the state level. Fellow conservative Justice Clarence Thomas pressed the U.S. solicitor general to specify where the right to an abortion could be found in the Constitution.

“If we were talking about the Second Amendment, I know what we’re talking about,” he said. “Because it’s written, it’s there. What specifically is the right here [to abortion] that we’re talking about?”

Justices have struck down precedents in the past

Morton went on to note that the Supreme Court has struck down its own precedents in the past.

Among the most notable examples is the Brown v. Board of Education decision that overturned the “separate but equal” racial precedent set in the prior Plessy v. Ferguson ruling.

Conservative Justice Samuel Alito invoked the Plessy decision in oral arguments in the abortion case, using the outcome to demonstrate healthy skepticism over whether any Supreme Court ruling is untouchable.

As Morton concluded, medical advancements in recent decades have led to the revelation that “the unborn experience taste, light, sound, and pain, all independently of the mother’s experience.”

Even if the evidence leads a majority of justices to determine the Roe precedent should be overturned, it remains to be seen whether they will have the will to cast such a widely unpopular vote.

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