Volume 16

A Draft Opinion Overruling Roe v. Wade

by Clarke D. Forsythe

Roe v. Wade has been subject to substantial judicial and scholarly criticism over the past forty-five years, but without an attempt specifically to explore how to overrule it in a majority opinion. This Article attempts to remedy that by drafting a model opinion that could be used to overrule Roe. The predicate for this Article’s proposed decision is a state’s 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.

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