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Since the U.S. Supreme Court ruling on Roe v. Wade in 1973, the abortion philosophy has sunk deeply into the American psyche. A generation of young American women has known abortion only as a legal right, not as a crime or desperate act. The task of restoring the sanctity of all life, fetal included, may seem impossible.

We should understand, however, that even with the appointment of antiabortion justices, Roe is not likely to be reversed overnight. To avoid illusions, and thus encourage true and realistic hope, Christians who struggle to end abortion on demand need to know the answers to such questions as these:

• How, exactly, can the current legal situation be changed?
  
  
• What is involved in overturning a constitutional ruling?
  
  
• How long might it take?
  
  
• Is there a legal strategy that prolifers should keep in mind?

Possibilities for ending abortion on demand
When the Supreme Court makes a decision regarding constitutional law, it can be changed in only two ways: by a constitutional amendment, or by the Court reversing itself. Amending the Constitution is a lengthy and rarely used process. (Only 26 amendments have been added to the Constitution.) More frequently, the Court will change its mind in a later case or, gradually, in a number of cases.

In our 200 years of history, the Court has explicitly overruled its earlier constitutional interpretations more than 100 times, an average of once every two years. Although a few decisions have been reversed a year or two after the original case, the average "life" of a constitutional mistake has been calculated as 24 years. (See "Abandoning Error," by John T. Noonan, Jr., in Reversing Roe v. Wade.)

Reversal requires either that enough justices change their minds about the original decision to make a new majority, or that new members are appointed to the Court. The second possibility offers greater hope for overruling Roe.

If the Supreme Court were to reverse Roe v. Wade, it is not likely that it would do so in a single decision. It is more likely that Roe would be reversed by a series of decisions, gradually eroding the original doctrine. Over time, it would become evident that little legal support remains. Such a reversal would require several cases, appealed to the Supreme Court, to present relevant abortion issues to the justices. On each appeal, the Court would have the opportunity to reverse decisively, or to take the smaller step of somehow limiting abortion.

No one can predict how long the process could take. It might span several generations. "Jim Crow" laws, for example, were approved by the Supreme Court in 1896 and not overruled until 1954. On the other hand, the Court has reversed itself within a year. More frequent are life spans of a few years, such as that of Minersville School District v. Gobitis. This 1940 ruling required that school children salute the flag and recite the Pledge of Allegiance, and it was overturned in 1943.

Just how would this gradual reversal work? A typical strategy begins with enactment of a law that regulates abortion in some way. Abortion-performing physicians would undoubtedly bring a lawsuit in federal district court to challenge the law. The decision of that court would be appealed to a circuit court by the losing party. The circuit court's decision then would be appealed to the "court of last resort," the Supreme Court.

This plan would attack Roe's most vulnerable point, then proceed in subsequent cases to its best-defended position. And what is Roe's weakest point?

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January (Web-only) 2003, Vol. 47