While Roe v. Wade has been Supreme Court precedent for 50 years, it is facing its biggest legal test right now, according to constitutional law expert Alan Dershowitz on Newsmax, as Mississippi seeks to move the timetable on abortion restrictions.
"There are only three justices, I think today, who would uphold Roe v. Wade completely," Dershowitz told Saturday's "America Right Now."
Those are the three liberal justices on the court – Stephen Breyer, Sonia Sotomayor, and Elena Kagan – putting at least a partial unwinding of Roe v. Wade on the table right now, Dershowitz told host Tom Basile.
Conservative Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch figure to be on the side of overruling Roe v. Wade, while Chief Justice John Roberts is in the middle and likely attempting to pull in the newest Justices Brett Kavanaugh and Amy Coney Barrett to join him, according to Dershowitz.
"The key question is going to be whether Chief Justice Roberts can persuade either Justices Barrett or Kavanaugh to join him in upholding Roe v. Wade, while also upholding the Mississippi statute that changes the timing from viability [of a fetus] of 23 weeks to 15 weeks," Dershowitz said.
"So, if he can get one of them to join him, we will not see Roe v. Wade overruled – at least not yet."
Without Barrett and Kavanaugh joining Roberts and the liberals, the Roe v. Wade precedent is going to be forever changed in case law, which would be "cataclysmic political event," Dershowitz said.
"But, if you can't get either of them to join him, then he will probably join the three dissenters in upholding Roe v. Wade, but they'll be five justices to overrule it, and that would cause a cataclysmic political event in America," he predicted. "Congress would try to pass a statute first making abortion of federal right. It would become a major issue in the 2022 midterms and then in the 2024 presidential."
The ruling on Mississippi might change more than the legal precedent on a woman's right to choose abortion, but it might ultimately change the Supreme Court forever, Dershowitz concluded.
"I think the choice is between either overruling Roe v. Wade or the middle-ground position upholding Mississippi but not overruling," he said. "I think that is right now in process. I think that Roberts is working hard on these two justices to try to persuade them that the court's integrity depends on not overruling – even if it's a wrong, many of them think it is – a precedent that's been on the books for 50 years.
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