Hofstra Law Review


In this Idea, Professor Sedler, who litigated the Kentucky version of Roe v. Wade for the ACLU of Kentucky while on the faculty of the University of Kentucky, gives his opinion as to why the Supreme Court will not overrule Roe v. Wade. The Idea is based on an op-ed that ProfessorSedler published in the Detroit Free Press in connection with the nomination of Chief Justice John Roberts to the Supreme Court.

Professor Sedler maintains that the Court is not likely to overrule Roe v. Wade for two related reasons. The first reason goes to the operation of the Court itself. The Court operates as an institution, and, although the Court has the power to overrule its decisions, a longitudinal analysis indicates that over a period of time, comparatively few decisions have been overruled. More significantly, the Court has never overruled a decision recognizing a constitutional liberty interest, or for that matter, any other constitutionally-protected interest. Where the Court has overruled cases involving constitutional rights, it has been to overrule a case rejecting a claimed constitutional right and to hold that the claimed right is indeed protected by the Constitution.

Second, for the Court to overrule Roe v. Wade would have a cataclysmic effect on American society. For large numbers of American women, abortion has become a fully acceptable way of ending an unwanted pregnancy. Professor Sedler reviews the latest available data, which shows that approximately 1.3 million American women have abortions every year, with almost 90% being performed during the first 12 weeks, and most during the first 9 weeks. Less than 1% of these abortions are performed after 24 weeks. On the other hand, the data shows that more than half of the women reporting unwanted pregnancies choose to continue with their pregnancies rather than have an abortion. The right of a woman to choose to continue with an unwanted pregnancy or to choose to terminate that pregnancy by a medical abortion is firmly established in American society today and is part of the value acceptances of that society. The Supreme Court will not take that choice away from American women.

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