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Is the Supreme Court going to overturn Roe v. Wade? Legal experts are divided

The steps of the Supreme CourtKevin Dietsch/Getty

Legal experts offered a variety of predictions Thursday on whether the US Supreme Court is poised to overturn Roe v. Wade, the landmark 1973 decision establishing a woman’s constitutional right to get an abortion.

At least five and maybe six of the justices on the nine-member court are “ready to overturn Roe and its legacy,” said Mark Tushnet, an emeritus Harvard Law School professor. “I think it was clear with the appointment of Justice [Amy Coney] Barrett that there was a firm majority to repudiate the court’s abortion-related jurisprudence.”

But other experts were less sure of how the high court will rule or suggested it would move incrementally, rather than make a sweeping move.


The Supreme Court generated headlines when, in a provisional ruling late Wednesday, it refused to block a Texas law barring most abortions. The case continues in the lower federal courts.

But the ruling set the stage for a showdown in the court’s next term, which starts next month, when the court will decide whether Roe v. Wade should be overruled in a case from Mississippi concerning a state law banning most abortions after 15 weeks that has been blocked by lower courts.

Tushnet said the 5-4 Texas decision increases the probability that in the Mississippi case, five of the justices “will be willing to say, ‘Let’s just overrule Roe v. Wade.’ ”

“If they go down that path, which I think is likely, they will expressly overturn the whole thing,” he said.

Harvard Law Professor Michael Klarman said, “I don’t know the answer and nobody can be super-confident. My best guess is there are not five votes to flat-out overturn Roe v. Wade.”

At the same time, he said, “That doesn’t mean they’re not prepared to gut it” or “drain it of most of its meaning.”


One way, he said, would be if the court shortened the time period women have a right to get an abortion.

“The main point from their perspective is to avoid a headline saying ‘Supreme Court repudiates 50-year-old precedent,’ ” he said.

If Roe v. Wade were to be overturned, it would create intense controversy, he noted.

“If they ever do say that, there’s just going to be an explosion in the country,” he said. “There’s no reason to think the country is going to tolerate it.”

Mary Ziegler, a Florida State University law professor who is the author of “Abortion and the Law in America,” also thought the court wasn’t likely to simply toss out Roe v. Wade.

“We may be talking a series of decisions, rather than just one,” said Ziegler, who will be a visiting professor at Harvard Law in the spring.

She said the court, “even in the order from Texas yesterday seemed concerned about a possible political backlash.”

“Proceeding more gradually and making the case to the public might make more sense than doing things in one fell swoop,” she said. “The court knows the public is watching.”

The court has shifted to the right in recent years, with three members appointed by Republican Donald Trump, who had vowed to name justices prepared to overrule Roe v. Wade. One of the justices, Barrett, replaced Ruth Bader Ginsburg, who viewed access to abortion as essential to women’s autonomy and equality. Another justice, Brett M. Kavanaugh, replaced Anthony M. Kennedy, a cautious supporter of abortion rights. (The third justice, Neil Gorsuch, replaced the conservative Antonin Scalia.)


Ziegler said Barrett and Kavanaugh know that they were “selected in part because they were expected to rule a certain way on abortion,” but at the same time they also “must know how they handle these cases will define their legacy as jurists.”

Suffolk University Law School Professor Renée Landers said, “It’s hard to say what the ultimate outcome would be.”

She said the court’s action in the Texas case, in letting the Texas law go forward before legal issues around it were resolved, was “highly unusual and disappointing.”

“If the justices were all to vote their personal opinion about whether abortion should be illegal or whether the Constitution should prevent states from prohibiting abortion, then you would have to say Roe v. Wade is on thin ice,” she said.

On the other hand, she said, the justices would have to discard five decades of precedent.

“It’s hard to know what they will do because now Roe v. Wade has been precedent for almost 50 years now, right? To change a precedent of that long standing, around which people have organized and relied upon, is a big thing for the court to do and is very rarely done unless there’s a good reason for it,” she said.

Chief Justice John Roberts, she said, “seems to believe in precedent and that the credibility of the court depends on its not being perceived as putting its finger to the political winds and making a decision on that basis.”


Material from Globe wire services was used in this report.

Martin Finucane can be reached at martin.finucane@globe.com.