How Would A President Ben Carson Overturn Roe v. Wade?

In short, overturning Roe v. Wade has to be a long‐​term project that catches a bit of luck along the way.
October 28, 2015 • Commentary
This article appeared on Forbes​.com on October 28, 2015.

Dr. Ben Carson’s recent announcement on Meet the Press that he’d like to see Roe v. Wadeoverturned isn’t particularly surprising. The media is having a field day with Carson’s comparison of abortion to slavery, as well his cheeky explanation that “I’m a reasonable person and if people can come up with a reasonable explanation of why they would like to kill a baby, I’ll listen,” but that’s all par for the course.

After all, most Republicans and all the GOP presidential candidates—except George Pataki, but including the latest version of Donald Trump—are pro‐​life. There’s disagreement regarding appropriate exceptions: Carson says he’s open to discussing the “extraordinarily rare situation” where the mother’s life is in danger, but again, this isn’t particularly newsworthy unless you’re an MSNBC host.

Yet there is one thing about this episode that got me thinking: How exactly would a President Carson (or anyone else) go about overturning Roe v. Wade?

Before going through the legal mechanics, the first thing to recognize is that Roe isn’t even the governing legal precedent regarding abortion—and hasn’t been for over two decades, since the Supreme Court’s ruling in Planned Parenthood v. Casey (1992). While Roe recognized a right to abortion as part of constitutional privacy protections, it set up a trimester framework to balance that right against the governmental interest in protecting the “potentiality of human life.” First‐​trimester abortions were to be at the complete discretion of the woman and her doctor, states could ban third‐​trimester abortions, and there was a gray area in the middle.

Casey collapsed that framework, upholding Roe’s “essential holding” about the abortion right but replacing the trimester framework with one that focused on viability. No regulations that placed an “undue burden” on the abortion right would be allowed before viability, while after viability states had more leeway so long as they made exceptions for maternal life and health. What constitutes an “undue burden”? In effect, it’s whatever you can get five votes for at the Supreme Court.

In other words, if you’re pro‐​life, returning to a world where Roe v. Wade is the law of the land would actually be an improvement over the current situation.

But let’s say that, like Ben Carson, you want to go back even further to the pre‐Roe days, where abortion regulations were left to the political process. Setting aside the possibility of an executive order that nullifies a Supreme Court ruling—even President Obama hasn’t tried that—what can the nation’s chief executive really do?

The answer is not much, at least not directly. The president can’t simply ask the Supreme Court to reverse a precedent. He or she can’t even file a lawsuit, except perhaps in his or her individual capacity upon being personally harmed by an abortion regulation.

And even that sort of thinking is beside the point: Every year the Supreme Court is asked to review abortion‐​related cases. At least a couple of petitions are currently pending, involving challenges to new restrictions in Mississippi and Texas. The justices could take one of these cases and overrule Casey and Roe, or modify the governing doctrine in some way.

But that’s unlikely to happen as a practical matter. If and when the Court next takes an abortion case, it’s much more likely to tinker around the edges with the “undue burden” standard, or simply apply it in a particular case to uphold or strike down a specific regulation.

There simply aren’t five votes to overturn Roe, not while one of Casey’s authors, Justice Anthony Kennedy, remains the Court’s decision maker on this (and most) hot‐​button issues. There may not even be four votes, given that Chief Justice John Roberts believes strongly not just in jurisprudential stare decisis—not disturbing established precedents—but in maintaining the political status quo.

So the only thing left to an anti‐Roe president is to wait for opportunities to replace pro‐Roe justices, with the most likely such vacancies to come from the seats currently occupied by Justices Ruth Bader Ginsburg (who’ll be 83 at the next election) and Stephen Breyer (78), as well as Kennedy himself (80). And, of course, that president would have to be accurate with his assessment of that nominee—with which Republican presidents have had decidedly mixed results. (Forget John Roberts and Obamacare; President Reagan intended to overturn Roe but two of his three nominees, Kennedy and Sandra Day O’Connor, eventually joined with David Souter, a George H.W. Bush nominee, to reaffirm it in Casey.)

Finally, even if President Carson were absolutely sure that his nominees would fulfill his goal, such an assurance would provoke fierce resistance from Senate Democrats. Justice Samuel Alito was only confirmed by a 58–42 vote in 2006, and replacing liberal icon Ginsburg with a conservative would likely trigger a filibuster. It’s not at all clear that Senate Republicans would then extend Harry Reid’s “nuclear option” to eliminate filibusters of Supreme Court nominees.

And if Democrats retake the Senate—a possibility even if a Republican wins the White House, and again in 2018—fuhgeddaboudit.

In short, overturning Roe v. Wade has to be a long‐​term project that catches a bit of luck along the way. Good luck to Ben Carson, but I wouldn’t advise anyone to maintain “undue” hope (or fear), at least not in the near future.

About the Author
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute