SAVANNAH, Ga. (WSAV) — Word this week of a leaked draft that the U.S. Supreme Court may overturn Roe v. Wade — the landmark decision that granted abortion rights — is still sinking in for many.
Abortion rights activists say that precedent is on their side as Roe has been the law of the land for nearly 50 years.
“Precedent is basically a stabilizing force in the law. It is this basic idea that there shouldn’t be revulsive changes in one direction or another generally speaking,” said Brett Curry who is a political science professor who teaches constitutional law at Georgia Southern University.
Curry says there’s no question that if Roe were before the current court today that the current justices would not approve it. But he says justices are expected to consider established law.
“Different justices are going to have different ideas about how wrong something has to be in order to sort of shock the legal system, basically to uproot it,” said Curry. “The questions would include what would the potential effects be. That is sometimes called reliance interest, i.e. how much have people come to rely upon a decision.
“And I think that’s one of the reasons that in terms of a potential overrule of Roe versus Wade would be the idea that it is something that has been around for a good long while, said Professor Curry.
While many will argue there is indeed reliance on the law, Curry says the Supreme Court could still overturn it. While not common, he says precedent has been overturned. Curry cited the famous case of Brown versus the Board of Education in 1954 which said that separate public schools for students of different races was unconstitutional. That overturned a law that had been in effect since 1879.
“Today everyone looks at that (Brown decision) and says it was the right thing to do,” Curry said.
“The current court has overruled precedents in the last several years but the cases are just not as significant or clearly as much of a focal point of the national political debate as Roe,” said Curry.
Curry says while there is speculation about the leaked draft and whether the majority of the court will take Roe on and overturn it, he is concerned about the leak itself.
“The one thing that is a surprise to me is the leak that is really unprecedented, and I think regardless of how you fall on the underlying issue it’s very damaging to the court both the internal workings of it and the trust that the judges in their chambers have,” Curry said.
Curry says if the draft was leaked to put pressure on the judges that the “Supreme Court sort of prides itself on not listening to the public in terms of its opinions but regardless of what it does now, it’s going to be seen as having done that.”
The issue of possibly overturning Roe v. Wade surrounds a Mississippi law that prohibits abortion at 15 weeks. The court might be able to uphold that law without necessarily overturning Roe, but the leaked draft indicates that many conservatives are apparently leaning toward overturning the landmark decision.
Still, Curry says it’s not known what discussions the justices have had or may have in the future.
He does indicate that Roe versus Wade passed based on the constitutional right of privacy. Abortion rights activists are already charging that if the Supreme Court overturns Roe that it may also be willing to overturn other landmark cases that were based on personal privacy like gay rights and gay marriage.
“The way things would go in overturning Roe based on undermining privacy rights could spill over to other areas,” said Curry. “That’s if the court wanted to go there but that gets us right back to the idea of law and politics how do they intersect?”