It is far from certain that court will overturn Roe

In case you didn’t realize it, it’s not Supreme Court Justice Brett Kavanaugh’s past that really bothers liberals. It’s his future. For them, a high court with Kavanaugh on it is a threat to Roe v. Wade, the 1973 court ruling that legalized abortion nationwide. This is because liberals assume that the court’s makeup now includes five justices, including Kavanaugh, willing to overturn Roe.

But nothing guarantees this perceived outcome. We rather doubt it, in fact.

At his confirmation hearings, Chief Justice John Roberts made a point of noting the legal principle stare decisis, or deference to precedent. Roberts is also the justice whose vote was critical to upholding the Affordable Care Act (Obamacare) and who has worked diligently to get the court to reach consensus decisions, rather than outcomes that seem politically divided.

Kavanaugh, for his part, at his official swearing in ceremony Monday evening, reiterated his commitment to fairness and maintaining an open mind.

Could the court overturn Roe? Yes. Such a decision would likely mean that each state would then decide for itself what abortion restrictions to pass. There would no longer be a federal right to an abortion. As a practical matter, this likely would mean abortion would be legal in places like Minnesota but not in other places, such as Alabama.

There is the one step further the court could go, declaring that a fetus is a person. This would result in a nationwide abortion ban. This, to us, seems unlikely. Were it to occur, there would be a massive political backlash that would subsequently reinstate abortion rights, although it might take time.

Former President Bill Clinton said abortion should be legal, safe and rare. As always, he was trying to triangulate, but as a practical matter he was on to something. Women should have a right to control the functions of their own bodies. But wouldn’t our society be better, more humane, less cold, less callous if every effort was made to reduce the number of abortions? Starting with responsible sexual practices, including more adoptions and never forgetting the other “choice”: Life.

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