By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
[email protected]


QUESTION: I read that the Supreme Court is likely to overturn Roe v. Wade and limit rights in other areas if President Trump’s nominee for Supreme Court, Brett Kavanaugh, is confirmed. How quickly could that happen?

ANSWER: It seems likely both that Judge Kavanaugh will be confirmed and that the conservative majority on the Supreme Court will either reverse the 1977 decision in Roe v. Wade, which upheld a woman’s right to an abortion, or modify its earlier ruling in light of advances in medicine. But any change will take time. The Supreme Court does not have the authority to reverse established law unless there is a case or controversy relating to that law that the Court is asked to decide, and it takes time for a case to make its way up to the Supreme Court.

In November 2016, we addressed a similar question, when a gay couple planning to marry wrote us fearing that their newly-found right would be taken away if the Supreme Court majority became more conservative, thanks to appointments by President Donald Trump. Back then — just over a year and a half ago — we believed the couple could be confident that their right to marry would not disappear.

We continue to believe that Obergefell v. Hodges, the opinion finding that the right to marry extends to same sex unions, is not likely to be overruled, but established precedent in other areas, including abortion, also seems to be on shaky ground, and any extension of job protection under Title VII to LGBT men and women also looks unlikely. A newly conservative Supreme Court is less likely to interpret statutory provisions to expand rights, and more likely to strike down cases in which a legal decision went beyond the strict language of a law. While overruling or reversing previous decisions is not easy, in Janus v. State, County and Municipal Employees the new Supreme Court majority has already overruled one of its earlier decisions, the 1977 decision that allowed union members who disapproved of union political activity to be exempt from paying a portion of union dues that supported such activity.

Will the Supreme Court overrule its earlier decisions?

Even in Janus, the Supreme Court did not simply decide to reverse an earlier decision because the balance on the Court had shifted; it is not allowed to revisit its decisions on a whim. The Supreme Court can only make a decision reversing or qualifying precedent if that decision is challenged in a “case or controversy” presented to the Court for review. When a case that clearly challenges existing law reaches the Supreme Court, the Court is often unwilling to reverse established precedent. But that does not mean the Court will not do so.

In June, the Janus Court reversed a 40-year-old precedent when it held that a non-union member’s rights under the First Amendment were violated where that employee was required to pay an “agency fee” — union dues without the added costs of lobbying and political action — to the union.

In reversing its earlier decision, the Supreme Court took a slightly different approach in its analysis of when a decision should be overruled, expanding the long-accepted list of four factors to five, and placing heightened emphasis on the new fifth factor, “the quality of the reasoning in [the precedential case].” The Court drew on language from earlier decisions which recognized that a case may be overturned “when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.” (The language appears in the concurring opinion of Chief Justice John Roberts in the 2010 decision, Citizens United v. Federal Election Commission, 558 U.S. 310.)

The “new” fifth factor seems to combine the third and fourth factors the Supreme Court announced just over a quarter century ago, in its 1992 decision in Casey v. Planned Parenthood, 505 U.S. 833 (1992), a case that upheld but limited Roe. There, the Supreme Court said that no judicial system would work “if it eyed each issue afresh in every case that raised it.” A respect for precedent, the Court stated, is “indispensable.” That said, the Court recognized cases might arise in which a prior judicial ruling should come to be seen “so clearly as error that its enforcement was … doomed.”

The Court then focused on just four factors it would consider when deciding whether its prior decision should be reversed (note how closely the third and fourth factors reflect the concerns of Justice Roberts):

1) Was the rule unworkable?

2) Would overruling the rule result in special hardship and be unfair to those who had relied on it?

3) Have other laws changed so much since the precedent was decided that the rule it announced is now outdated?

4) Has our understanding of the facts underpinning a decision changed, or come to be seen so differently, that the former rule can no longer be justified?

Abortion Rights

Examining Roe under these factors, the Casey Court found the rule set by Roe v. Wade was workable. Second, the Court stated that reversing Roe would result in inequity: In the years since Roe was decided, people had “organized intimate relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion in the event that contraception should fail.” Third, the legal reasoning underpinning of the Roe decision had not eroded. Finally, while the age of fetal viability had changed since Roe was decided in 1973, the essential facts supporting the decision as a whole had not.

In 1992, almost 20 years after Roe, the factual evidence showed that a fetus could be viable outside the womb as early as 23 weeks. As a result of this development, the Casey Court partially rejected Roe’s holding that abortion could not be regulated until the third trimester of pregnancy. The Casey Court held instead that the state could ban abortion at the point of fetal viability, whenever that occurred. The Casey Court chipped away at the breadth of the Roe decision but left it largely intact.

In the 26 years since Casey, medicine has continued to evolve. Not only has the age of possible viability moved up, but the understanding of fetal cognition and abilities has also developed. One recent study suggested, for example, that even during the first trimester, an embryo may feel pain. A law restricting abortions to the first eight weeks, based on studies like this, may find a receptive audience in the Supreme Court.

What the Casey Court did not discuss was the “reasoning” of the Roe decision, which has been criticized by both the left and the right, although the two sides obviously differ on whether abortion should be legal. Janus makes it clear that a precedent may now lose some of its value if the decision is, in the opinion of a Supreme Court majority, poorly reasoned.

Perhaps even more troubling for Roe, is the short-shrift the Janus majority paid to the second factor, reliance, easily dismissing 40 years of union and employer reliance on Supreme Court-approved agency agreements. The Janus Court reasoned that any reliance on the decision upholding agency agreements was misplaced because that decision had been questioned in a series of narrowly decided Supreme Court decisions. The language questioning the previous decision, however, was dicta — it was not essential to the Court’s ruling.

Roe, obviously, has been repeatedly called into question, and the broad access to abortion it initially recognized has been whittled away. After Janus, the existence of opinions questioning Roe may be enough to make any reliance misplaced. The vast majority of women who make the personal decision to have an abortion, however, are probably not in the habit of reading Supreme Court opinions and would have no reason to know that reliance on established law may be erroneous. A reversal of Roe would not invalidate laws that permit abortions; many states will continue to allow abortions, and well-off pregnant women who live in states that ban abortions will obtain one by travelling to a state in which the medical procedure is legal.

Same-Sex Marriage

The Court’s 5-4 decision in the 2015 “gay marriage case” — Obergefell v. Hodges — may be in better shape than Roe. The reasoning of Obergefell has not (yet) been repeatedly questioned; and the fact is, thousands of people have married in reliance on the opinion, decided to have or adopt children on the basis of those marriages, and made economic decisions based on those marriages. Unravelling those commitments would be a legal mess. The law itself is not unworkable — it has, in fact, worked fairly well, ensuring consistency of marital status across state lines (at the time the case was decided, 11 states allowed same sex couples to marry). The legal underpinnings of the decision have not become outmoded; the majority followed a line of cases expanding privacy and due process rights. Finally, the facts supporting the decision have not become outdated; in fact, 23 countries now allow same sex marriages, including Canada and the countries of the United Kingdom.

LGBT Workplace Equality

Also troubling is for LGBT people is the possibility that the new Supreme Court might walk back expanding rights under Title VII, the law that bars discrimination in the workplace on the basis of race, color, religion, national origin and sex. Recent decisions in federal circuit courts have found that the term “sex” in Title VII should be read broadly to include sexual orientation and gender identity. The Trump Administration, through the Justice Department, has filed briefs opposing any interpretation of the word “sex” to include anything other than biological gender.

A similar battle over the meaning of “sex” is taking place in Michigan. Michigan’s Civil Rights Commission voted in May to follow the interpretive lead of federal circuit courts, reading the prohibition of discrimination because of sex in Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), to include discrimination against LGBT people.

On July 20, 2018 Michigan’s Attorney General, Bill Schuette, issued an opinion stating that ELCRA does not explicitly prohibit discrimination on the basis of sexual orientation or identity, and to read such protection for LGBT people into the statute is an abuse of judicial power. The Attorney General, like the head of the Justice Department, said the issue should be decided by the legislature. However, legislative attempts to amend ELCRA to forbid discrimination on the basis of sexual orientation or identity have failed, largely due to opposition from Republican lawmakers. (On July 23, 2018, the Civil Rights Commission voted to disregard Schuette’s opinion.)

Constitutional Amendments?

Where the Supreme Court and the legislature are unwilling or unable to reverse a decision, the constitutional right on which the decision is based can be changed — by amending the U.S. Constitution. This has not been done often. The last amendment to the Constitution, the 27th Amendment, was in 1992. That Amendment delayed laws affecting Congressional salary from taking effect until after the next election of representatives. The amendment was originally proposed in 1789. The 26th Amendment, giving 18-year-olds the right to vote, was passed in 1971.

To amend the Constitution, two thirds of the House and Senate must approve the proposal and send it to the states. Three-fourths of the states must ratify the proposed amendment through a vote of the electorate.

Although polls of public opinion, as we have learned, can not only be wrong, but also dead wrong, a 2016 report by the Pew Research Center showed that 55 percent of Americans support same-sex marriage while only 37 percent oppose it. Views on abortion are closer. Because roughly 60 percent of the public favor allowing legal abortions while about 40 percent oppose them, it is unlikely that a Constitutional amendment would pass, although the question might be close. In contrast, the overwhelming majority of Americans support campaign finance reform — 85 percent according to a June 2015 New York Times poll. If a Constitutional Amendment placing limits on political speech were proposed, public support for overruling the Supreme Court’s decision in Citizens United might be found. Congressional support to overrule Citizens United, however, given Congressional self-interest in being re-elected, is less likely.

The Bottom Line

The bottom line is that the Supreme Court will, very likely, limit access to abortion if not actually reverse Roe, and will be unfriendly to any expansion of LGBT workers’ rights. But a sudden overhaul on all fronts is unlikely. Justice Neil Gorsuch and the (probable) future Justice Kavanaugh, are judicial conservatives who have in past opinions respected the value of precedent. Overruling a Supreme Court decision, while possible, will not be quick and easy. The Trump appointees to the Court, however, are young and will be able to advance a conservative view of the law for many decades.

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