On January 22, 1973 the U.S. Supreme Court handed down its decision in Roe v. Wade. The effect of that decision has made abortion on demand legal in the United States. Randall K. O’Bannon, director of research for National Right to Life, estimates the total number of abortions in the United States passed the 55 million mark in April or May of last year.
During the 40 years since Roe v. Wade, many pro-life groups have been organized to overturn it. Most of these groups have concentrated on two strategies: getting the U.S. Supreme Court to overturn its own decision or passing a constitutional amendment.
U.S. Constitution, Article III, Section 2
All along, there has been a third strategy that has gotten precious little attention: the power granted to Congress in Article III, Section 2 of the U.S. Constitution to limit the appellate jurisdiction of the Supreme Court:
The supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
It’s one of the numerous checks and balances in our Constitution. When any branch of our federal government strays from its constitutional authority, the other branches have the authority and responsibility to keep that branch within its bounds. Congress has the authority to overturn Roe v. Wade via this strategy.
Comparing Three Ways of Overturning Roe v. Wade
The three ways to overturn Roe v. Wade are:
• A constitutional amendment — That requires a two-thirds majority vote in each House of Congress followed by ratification by three fourths of the states.
• Getting the U.S. Supreme to reverse its previous decision — This is by far the hardest way for two reasons. Judges are typically reluctant to reverse their own decisions or the decisions of their predecessors. Some have suggested appointing at least five solidly pro-life justices who be willing to vote to overturn Roe v. Wade. This has already shown itself to be unworkable.
• Passing a law based on Article III, Section 2 to limit the jurisdiction of the U.S. Supreme Court — This requires a simple majority of both Houses of Congress and the president’s signature. If the president vetoes the bill, the veto can be overridden by two thirds of each House.
Overturning Roe v. Wade via Article III, Section 2 is clearly less difficult than either the constitutional amendment route or by trying to get the U.S. Supreme Court to reverse itself.
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