Will Roe Go? | American Center for Law and Justice
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By Jay Sekulow1309027420000

Yesterday I was in our office in Washington, DC, discussing with some of our senior staff the laws passed in South Dakota and soon to be passed in Mississippi regarding the elimination of abortion in those states except when the life of the mother is at stake.  The frustration of states and the will of the people on the abortion issue cannot be overstated.  For far too long, the courts have dismissed even minor restrictions on abortion as unconstitutional.  Whether its parental notice or now the partial-birth abortion cases, the issue of life is front and center in America. 


The fact is that there is probably (and I underscore probably) only four votes on the Supreme Court that would overturn Roe v. Wade.  Justices Thomas and Scalia have already voiced their opposition to the Supreme Courts decision in Roe.  Chief Justice Roberts and Justice Alito will be dealing with their first substantive abortion case in the partial-birth abortion case to be argued next term at the Supreme Court.  It takes five votes to overturn a Supreme Court precedent; and while Justice Kennedy has been supportive of restrictions in the partial-birth abortion context, he also co-authored an opinion which reaffirmed the right to abortion recognized in Roe v. Wade.


Since I am a strategist and one who deals with the Supreme Court on a regular basis, I know that we would have a difficult time at this point in seeing Roe v. Wade overturned.  But all that could change with the shift of Court personnel.  If, in fact, there were five votes for Roe to be overturned, the lack of an exception for rape or incest may become a factor.  President Bush has indicated that he does not support the South Dakota law because it does not have an exception for rape or incest.  Others within the pro-life community have expressed similar concern.  Part of a Supreme Court case is the atmospherics that a fact pattern creates.  In order to see Roe v. Wade overturned and the issue returned to the states, an exception for life of the mother, rape and incest would certainly make a more suitable vehicle for the Court. 


Yet the frustration of the states and the people of these states is clear.  There is a growing consensus to protect the life of the child in utero.  This is a good thing for America.  I believe we are going to be successful in the partial-birth abortion cases.  In that context, however, we are going to need everyones help.  I encourage you to click here to see how you can join with us in this effort. 


The Supreme Court under John Roberts has issued twice as many unanimous opinions so far than the Rehnquist Court.  I think this bodes well for us.  We were pleased with the unanimous decision in the parental notice case, and I was gratified with the unanimous decision in our RICO case.  I am optimistic that while we may not see a unanimous decision in the partial-birth abortion case, I do believe we are going to carry the day and see this hideous practice put to an end. 

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