QUESTION ASKED: Should Roe V. Wade Stand?

At this point, the debate shifts to the juridical question of whether the principle of stare decisis—let the decision stand—insulates Roe from being overruled. We can be confident that this issue will add yet another layer of controversy to the underlying question. The consequences of reinjecting the issue into the political arena will be endlessly debated, with many fearing its increased salience can only increase societal unrest. It seems quite likely that overturning Roe would fracture what remains of the uneasy coalition between pro-market Republicans and their religious compatriots, potentially undermining Republican chances of retaking the House and Senate in 2022.

My own weak preference is to let Roe stand, wrong as it is, and to use moral suasion to reduce the number of abortions throughout the United States. But the ultimate resolution depends on how the above arguments resonate with the five or six conservatives on the Supreme Court. Chief Justice Roberts is likely to trim his sails by voting to keep Roe, but he is no longer the swing vote. The five other conservative justices are likely to take the opposite course for either or both of two reasons: first, their sense of judicial restraint recoils at Roe’s unprincipled constitutional adventurism; and second, that abortions are wrongful conduct that state legislatures should be permitted to regulate and punish. Even in this highly charged world, I cannot think of any strong substantive constitutional argument that could persuade them not to overturn Roe.

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