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Can the Supreme Court overturn Roe v. Wade?

With the addition of Justice Brett Kavanaugh to the U.S. Supreme Court, many people have been asking whether Roe v. Wade—the 1973 Supreme Court decision creating a constitutional right of a woman to terminate her pregnancy—can be overturned. Underlying this question is whether the Supreme Court can overturn one of its own prior decisions—also called “precedent.”

Supreme Court precedent is binding authority on other federal courts, but only persuasive authority for subsequent cases before the Court itself. That means a prior decision is only as persuasive as the strength of its reasoning. Supreme Court justices are free to overrule any prior decision and have done so to varying degrees throughout the Court’s history.

A post on Empirical SCOTUS blog this week delves into the relationship between the Supreme Court and precedent. Notable findings include:

  • There have been over 300 decisions overturned by the Supreme Court in its 229-year history.
  • The age of an overturned decision ranges from the same year to 137 years later. (Roe is 45 years old.)
  • The Court in modern times is more likely to review and overturn prior decisions than it has been the past.
  • The Court has not slowed down the pace at which it overturns decisions in recent years, including overturning 4 decision in the last term.

In sum, overturning Roe is not only permissible, but well within the Supreme Court’s established practice. You could say there is precedent to overturn precedent.