Dear Liberals: No, Neil Gorsuch Can’t Overturn Roe Vs. Wade

REUTERS/Carlos Barria

Joe Alton Contributor
Font Size:

Judge Neil Gorsuch, Donald Trump’s choice to fill the SCOTUS vacancy, is thought to be pro-life “friendly.” That doesn’t mean that a sacred cow of the Left, Roe vs. Wade, is in danger of being ground into hamburger.

The president wooed right-to-life voters during the 2016 campaign and made good on his promise to nominate someone “Scalia-like”; but one Supreme Court nominee, even an activist one, would have little, if any, effect on easy access to abortion in the United States.

At present, 5 Supreme Court justices have indicated that they are in favor of upholding Roe vs. Wade: Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy. Trump’s choice will, at most, add a fourth vote to the minority.

The Supreme Court decides which cases they’ll hear, but they don’t pick topics such as abortion out of thin air, and neither can Neil Gorsuch. The most common way the Court has an issue brought before it is by, for example, a state passing a law to outlaw all abortions. As such a law would, by definition, make abortion providers and even patients criminals, it would likely be challenged in court. It goes through district, then appellate levels before finally making it to the Supreme Court.
(The Supreme Court is rarely the first to hear a case, unless it’s a state vs. state or federal vs. state issue.)

Even if the case reaches the high court, conservative justices on the Court might decide, as Chief Justice John Roberts did with Obamacare, that overturning Roe vs. Wade is too hot a potato and be reluctant to reverse a long-standing decision. Gorsuch himself has never ruled specifically on abortion.This whole process takes a while, and President Trump could possibly appoint more abortion hard-liners as vacancies occur to reach a solid pro-life SCOTUS majority. This is the most plausible scenario where the Court could overturn Roe vs. Wade.

Yet, the various liberals on the Court will hang onto their positions with their dying breaths to prevent this from happening. A pro-life majority is a possibility, in my opinion, only if Trump is re-elected to a second term.Even if the Court, one day, overturns Roe vs. Wade, it doesn’t mean that all abortions will be outlawed in the U.S. What it would mean is that individual states will then decide if termination of pregnancy will or will not be allowed in their jurisdiction. You might not be able to get an abortion in, say, Utah and have to travel to neighboring Colorado (as an abortion is an outpatient procedure, it doesn’t require an overnight stay in most cases). I doubt more than a few states would pass legislation to outlaw all terminations.

In any case, expect plenty of fireworks regarding Judge Gorsuch in street protests and, especially, when President Trump’s nominee hits committee hearings. Whether the candidate for SCOTUS is bent on overturning Roe vs. Wade or not, Democrats will jump at the opportunity to wreak havoc. But with regards to this particular issue, it’s a tempest in a teacup. For now.