A Draft Opinion Overruling Roe v. Wade

Abstract

The Supreme Court’s 1973 decision in Roe v. Wade has been subject to substantial judicial and scholarly criticism over the past forty-five years. Until now, there has been no comprehensive exploration of how Roe might be overturned through a majority opinion. And any past efforts would need to be updated to take account of factual and legal developments that are relevant to the Court’s doctrine of stare decisis. This Article presents a majority opinion that would effectively overrule Roe. The state action vehicle is a twenty-week limit on abortion, which (as of 2018) has been enacted by twenty-one states. All of the six primary factors of stare decisis are applied to Roe. Although judges and scholars might disagree whether all six factors are relevant to an overruling decision, each factor illuminates specific defects in Roe. Much of the significant scholarly criticism of the past forty-five years is compiled and cited here. Much of the judicial criticism of Roe and its workability is likewise compiled and cited. The opinion overrules the first holding in Roe, that there is a federal constitutional right to “terminate pregnancy.” This “draft” invites alternative formulations.