Updated March 14
WASHINGTON (BP)–South Dakota’s enactment of a ban on abortion has boosted hopes the new law might be the vehicle for a reversal of Roe v. Wade, but Associate Justice Antonin Scalia said recently he doubts the current Supreme Court would overturn the 1973 opinion and doesn’t know if it ever will.
Speaking to a gathering of Swiss professors and students March 8, Scalia, whose opposition to Roe is well known, said when asked if the highly criticized ruling would be reversed by the high court, “I have no idea. I have no idea whether it will be.
“It is not likely to be overturned with the current court, because there are still five justices on our court who voted in favor of Roe vs. Wade,” Scalia told a group at the University of Freiburg. “So, if I had to guess, I would say, ‘Not yet — maybe not [ever] — but certainly not yet.”
Though Scalia said he did not have an official opinion on abortion, he said a right to the procedure “is not contained in the Constitution of the United States.”
Scalia’s remarks were reported by LifeNews.com, which based its article on a French Audio-Visual Bureau news report.
Scalia’s remarks underscored concerns some pro-life advocates have voiced about South Dakota’s frontal challenge to Roe.
In a March 8 online editorial, National Review, a conservative magazine, said it had “mixed feelings.” The editors said they “share the pro-life objectives that animate” the South Dakota law and a Mississippi bill, “but we doubt that they actually advance those objectives.”
If the measures are challenged and reach the high court, “they will elicit another reaffirmation of that decision,” the editorial said. “They could thus strengthen the felt force of the argument that Roe is a super-duper-precedent.”
Some supporters of the South Dakota law have argued not only that states should do what is right rather than look to the Supreme Court for guidance on legislation, but also that the make-up of the court might change before the case reaches the justices.
That scenario might pose another problem, National Review contended.
“If another vacancy arises while these laws are working their way through the courts, their effect will be to make it harder to confirm a justice who might be inclined to be the decisive vote against Roe,” the editors wrote.
Instead, pro-lifers should continue to pursue an “incremental strategy,” according to the editorial. If Roe is reversed, pro-lifers should seek bans in each state on most abortions, then on abortions in the cases of rape and incest, the editors said. “To try to collapse this multi-stage process into an instant is to ignore social and political circumstances, and to throw away patiently and painfully won political victories for the sake of an emotional gesture,” the editors said.
Only two sitting justices –- Scalia and Clarence Thomas –- have expressed opposition to Roe since joining the high court. Two new members –- Chief Justice John Roberts and Associate Justice Samuel Alito –- have yet to rule on Roe’s constitutionality. Associate Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer have demonstrated support for Roe while on the court.
If Roe is overturned, abortion would not be outlawed in the country. Such a ruling would return the issue to the states, which could enact bans on the procedure.