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Hillsdale pro­fessors dis­agreed over the like­lihood that the Supreme Court of the United States will overturn its Roe v. Wade decision as it takes up cases this term involving abortion rights.

“You have five jus­tices who would not have decided Roe the way it was orig­i­nally decided,” Assistant Pro­fessor of Pol­itics Adam Car­rington said, “but you also have jus­tices who claim respect for precedent.”

The Supreme Court of the United States reviewed Texas’ con­tro­versial abortion law, Senate Bill 8, this week. The court is expected to hear Dobbs v. Jackson Women’s Health,  in which the Court will decide if all pre-via­bility pro­hi­bi­tions on elective abor­tions are uncon­sti­tu­tional, in December.

In the 1973 decision Roe v. Wade, the U.S. Supreme Court ruled that the “right of privacy” is “broad enough to encompass” a right to abortion. The court ruling allowed states to make abortion in the third-trimester illegal, con­tingent on the exis­tence of excep­tions to protect the life and “health” of the mother. 

If the court upholds the law’s uncon­ven­tional enforcement, could their decision con­tribute to the eventual over­turning of Roe v. Wade? 

William and Berniece Grewcock Chair in Con­sti­tu­tional History Paul Moreno said he can guar­antee Roe v. Wade will not be over­turned because the case was over­turned in Planned Par­enthood v. Casey in 1982.

Car­rington said if Roe v. Wade is over­turned, the power to determine the right to abortion will go back to the states, returning the power to the people.

“There would be states like Mis­sis­sippi that would almost for sure ban all abor­tions, and other states like New York and Cal­i­fornia that already have very pro­gressive abortion laws would keep theirs, if not expand them,” he said. “Then you’d have states like Michigan in the Midwest that would be in between.”

Car­rington argued Roe v. Wade was wrong­fully decided, setting up the nation for strife and in-fighting. 

“I think some­thing that even people who agree with the outcome have admitted is that it’s also really poorly rea­soned that it artic­u­lated a right that wasn’t listed in the Con­sti­tution,” he said.

He com­pared the case to Dred Scott v. Sanford, in which the court decided that descen­dants of American slaves were not American cit­izens and therefore lacked the standing to sue in federal court. 

“Dred Scott was trying to settle the slavery question defin­i­tively, and that ended up exac­er­bating the very problem it thought it was trying to settle,” he said. 

Car­rington said the primary way to protect the right to life is not through Supreme Court deci­sions, but through trans­forming public opinion. 

“It would be about building a con­sensus across the country, but you can’t really build that con­sensus if you don’t get the Supreme Court out of the way,” he said. 

Moreno said Roe was largely upheld in Casey, but the jus­tices imposed a new standard to determine the validity of abortion laws asking whether a state abortion reg­u­lation has the purpose or effect of imposing an “undue burden” on the woman.

“Casey did rein­force the central holding of Roe that there is a con­sti­tu­tional right to abortion,” he said, “but there’s a lot about Roe that it also threw away.”

Moreno agreed with Car­rington that Roe is on the same level as the Dred Scott decision. 

“Roe’s assump­tions about how we don’t know when human life begins is bio­log­i­cally ridiculous, so it’s up there with Dred Scott as one of the worst cases in the history of the court,” Moreno said. 

He said if states regained the power to determine the right to abortion, pro-abortion states would respond by refusing to enforce their con­sti­tu­tional requirement to protect the unborn.

Though Asso­ciate Pro­fessor of History Kory Maas said he would like to see Roe over­turned, he, like Moreno, believes it is unlikely. 

“There’s a long history of pro-life Amer­icans putting a lot of con­fi­dence in the courts at various points to be dis­ap­pointed,” he said. 

However, Maas said excluding the past 40 years, precedent is on the pro-life side. 

“There was prece­dents on the side of restricting abortion in English common law and therefore in colonial law and early American law,” he said. 

Maas said he hopes the pro-life movement will con­tinue to change minds on the grass-roots level. 

“Aside from the question of ‘should you take this decision away from the states and the people who live in those states and let the Supreme Court decide,’ the whole argument of Roe v. Wade was grossly flawed on bio­logical, legal, and even logical grounds,” Maas said.