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When it comes to overturning Roe v. Wade, even pro-death justices like Ruth Bader Ginsburg can agree that the High Court's 1973 landmark ruling overstepped the native role of state lawmakers.
Scholars explain various legal arguments that could take down Roe such as establishing that an unborn baby is a person whose right to life is protected by the 14th Amendment. But the argument currently gaining force is that Roe unconstitutionally stripped the right of states to decide for themselves whether to kill their own babies. Even judicial activists like Ginsburg have criticized Roe for doing this.
Speaking at the University of Chicago Law School in 2013, Ginsburg said, "My criticism of Roe is that it seemed to have stopped the momentum on the side of change." She added that abortion rights should have been secured more gradually in a process that involved state legislatures.
Many people think that pro-life justices will overturn Roe because they are pro-life. President Donald Trump even promised to nominate such justices for the U.S. Supreme Court. But justices like Neil Gorsuch and Brett Kavanaugh utterly reject letting their personal pro-life views alter their concept of constitutional law. Both justices considered themselves to be defenders of the Constitution and not judicial activists who can twist its meaning to suit their personally held convictions.
But precisely because they uphold the Constitution, conservative justices like Gorsuch and Kavanaugh may rule that states do have the constitutional right to decide for themselves whether to allow abortion. Giving this power back to the states is what is meant by overturning Roe. This won't stop abortion as many states are passing laws in anticipation of this ruling so that abortion remains legal within the state borders.
To stop abortion completely in all states the Supreme Court would have to rule that unborn babies are legally classified as persons. In authoring Roe v. Wade, Justice Harry Blackmun conceded that legally classifying fetuses as "persons" would instantly kill the U.S. Supreme Court's 1973 landmark decision and immediately outlaw all abortions.
In Roe, Texas argued that "the fetus is a 'person,'" whose right to life was protected by "due process" and "equal protection" of law under the 14th Amendment. In his majority opinion, Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."
Watch the panel discuss the Supreme Court aborting Roe v. Wade in The Download—Supreme Court Showdown?