The conservative majority of the US Supreme Court could use the Mississippi abortion law to overturn the Roe vs Wade ruling, but three of those justices also strongly believe in leaving precedent intact, raising the possibility the 1973 decision will be untouched, legal experts said.
The Supreme Court agreed Monday to consider a major rollback of abortion rights, saying it will decide whether states can ban abortions before a fetus can survive outside the womb. Lower courts had ruled the law was unconstitutional, citing earlier rulings by the Supreme Court and the law has not taken effect.
Under court rules, four justices have to vote to grant certiorari in order to hear a case and Boston College Law School Professor Kent Greenfield said that reality suggests Roe vs Wade is in serious legal peril. The justices who voted to grant the hearing only need one more vote to reach the five justices needed to control the majority decision. And since the lower courts voted for the status quo, four justices are voting for change, he said.
“The only reason the court takes a case like this is when they want to change existing law,” he said. “I foresee either a major retreat from the promises of Roe or a complete overturning of Roe...It’s the triumph of the three Trump appointments.”
However, Suffolk University Law Professor Renee Landers noted that Chief Justice John G. Roberts Jr. and Justices Neil Gorsuch and Brett Kavanaugh have indicated they believe that once the nation’s highest court determines the meaning of a constitutional principle, that concept should be left alone - barring some new scientific discovery or major social change.
“They have two conflicting ideologies or principles. One is the anti-abortion position and the second is an adherence to precedent,’' she said of the conservative wing, which includes the three Trump appointees. “The second is in adherence to precedents and not overturning precedent unless there’s really something that has changed in the world that would require the court to revisit” an issue.
Lander said she does not believe the Mississippi law qualifies as a substantial change. The law bans most abortions after the first 15 weeks of pregnancy except for medical emergencies or fetal abnormalities - and the nation’s highest court has agreed with the concept, but set the viability standard at 21 to 24 weeks.
Still, even if Roberts sides with the three liberal justices - Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan - the vote of a fifth justice would be required to reach the majority, Landers noted. And that she said does create the possibility that Roe vs Wade, which legalized abortions in the US, could be weakened or overturned.
“They could do it,” she said. “But I think that would invite a lot of heavy, heavy criticism of them. It would call into question all kinds of other precedents if they are willing to do that.”
Martin W. Healy, chief legal counsel to the Massachusetts Bar Association, said the conservative majority are a powerful bloc on the court and could readily conclude that Roe vs. Wade is no longer the law of the land.
“This is the first real case the court has looked at in a long time looking at the protections afforded women under Roe vs Wade,’' he said. “Whether or not it eliminates Roe vs Wade in its entirety is an open question. I think it would be difficult for them to abandon Roe in its entirety.”
“But this certainly is the case that’s in the position that could do that,’' he said. “We don’t know how the individual justices that are new to the court are going to vote on this matter so it definitely has the potential to be a groundbreaking case. It’s going to be watched closely by many legal observers throughout the country.”