Bob Buckley for The Examiner: Abortion Policy Turns on More Than One Election

October 5, 2020

Bob Buckley, partner at White, Graham, Buckley & Carr, is a regular columnist for The Examiner of East Jackson County. In his latest column, Buckley discussed the likelihood of the Supreme Court overturning Roe v. Wade in the next presidential term. He also outlined the process that would take place before the Supreme Court can even consider overturning Roe v. Wade.

The article, Abortion Policy Turns on More Than One Election, was published in the October 2 edition of The Examiner. An excerpt from the article is below.

President Trump and Senate Majority Leader Mitch McConnell have promised a speedy appointment and approval of the new Supreme Court nominee, Amy Coney Barrett. The Republicans have enough votes to push the appointment through, maybe even before the election.

If everyone thinks Roe v. Wade will be overturned very quickly, they should realize that this is a long-term process.

Roe v. Wade began in June 1969 when Norma McCorvey discovered she was pregnant. She lived in Texas, where abortions were illegal. She went ahead and delivered the baby and put it up for adoption. She then filed suit in federal court in the Northern District of Texas in 1970 and in June of that year, a three-judge panel ruled that the Texas law was unconstitutional. The case was then appealed to Supreme Court. The case was decided in January 1973. Thus, it took almost four years for the case to be resolved.

The first step going forward will be for a state legislature to pass a law declaring abortion to be illegal. That could happen very quickly as there are several states that could quickly pass such a law, including Missouri.

The next step would be for a pregnant woman to seek an abortion, be stopped by the new law, and she would then file suit. There would likely be a trial in federal District Court and then an appeal to the Circuit Court of Appeals for that jurisdiction. This could take some time as well. It would then be appealed to the Supreme Court, which is a slow process also. It would be difficult to accomplish this before the next president is elected in 2024. Much can happen during that time.

One thing that could happen is that the Supreme Court could be expanded by legislation to 11 or 13 justices. For this to occur, the Democrats would have to gain control of the Senate and retain control of the House of Representatives. The filibuster rule requiring 60 votes to stop debate on appointment of Supreme Court justices was eliminated by McConnell with adoption of the “nuclear option” during the Trump presidency, which led to the appointment of Neil Gorsuch and Brett Kavanaugh. Under the old rules, they would not have been approved because of the filibuster rule.

The Democrats had eliminated the filibuster rule on lower federal judicial appointments in 2013 and McConnell told them at the time that they had made a huge mistake, which led to blocking of Merrick Garland’s appointment to the Supreme Court by President Obama under the “nuclear option.” Thus, if Joe Biden is President and the Democrats control the Senate, two or perhaps four justices would be appointed to join those already on the court.

In the last abortion restriction case before the Supreme Court earlier this year, the court was considering a Louisiana law that required doctors performing abortions to hold “active admitting privileges at a hospital … located not further than thirty miles from the location at which the abortion is performed.” The Supreme Court had earlier considered a Texas law that was almost identical and had stuck it down, but there was hope that the Louisiana law would be declared constitutional because Trump had appointed Neil Gorsuch and Brett Kavanaugh to the court and there were now five conservatives on the court.