If you believe President Donald Trump's Supreme Court appointments will eventuate in overruling the constitutional right to an abortion decreed 43 years ago by a 7-2 vote in Roe v. Wade (1973), then you are living in fantasyland.
The Supreme Court is more concerned with preserving its constitutional handiwork than with correcting error. While more frequent than Halley's Comet, Supreme Court decisions overruling a precedent are always a long shot.
Consider the ill-reasoned 5-4 precedent of Miranda v. Arizona (1966). It was authored by ultra-liberal Chief Justice Earl Warren whose signature Platonic guardian-like question was "Is it fair or just," not is it constitutional. Miranda decreed that police may not undertake custodial interrogations without warning suspects of their right to silence, their right to speak with an attorney, and that anything said could be used against them at trial.
Miranda was harshly criticized in scholarly circles as unmoored to the Fifth Amendment. It fueled Richard Nixon's "law and order" presidential campaign in 1968. One of President Nixon's "law and order" appointments to the Supreme Court was Associate Justice William H. Rehnquist. He had been elevated to Chief Justice when the Court considered overruling Miranda in Dickerson v. United States (2000). But in like a surprise O Henry ending, the Chief Justice authored a 7-2 opinion affirming the precedent emphasizing Miranda warnings had become embedded in our culture.
Roe v. Wade is a less auspicious candidate for overruling than was Miranda. The precedent was established by a 7-2 vote, not a razor-thin 5-4 margin. Moreover, an earlier gambit to overrule Roe failed in Planned Parenthood v. Casey (1992). A plurality opinion by Associate Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter delivered a schoolmarm-like rebuke to opponents of Roe:
"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."
Not only has Roe become a double precedent in light of Planned Parenthood v. Casey, the absence of a national political initiative for 43 years to overrule the decision by a constitutional amendment is conspicuous. Congress has never voted out an amendment for ratification by state legislatures, and two-thirds of the states have never summoned a constitutional convention to consider and amendment as authorized by Article V of the Constitution.
In contrast, five other dubious Supreme Court decisions have provoked overruling amendments: the Eleventh Amendment (overruling Chisolm v. Georgia); the Fourteenth Amendment (overruling Dred Scott v. Sanford); the Income Tax Amendment (overruling Pollock v. Farmers' Loan & Trust Co.); the Women's Suffrage Amendment (overruling Minor v. Happersett); and, the Eighteen-Year-Old Voting Rights Amendment (overruling Oregon v. Mitchell).
Moreover, five of the eight incumbent Supreme Court Justices support Roe v. Wade: Associate Justices Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. President-Elect Trump has avowed to appoint Roe skeptics to the Court. But there is only one vacancy, not enough to defeat the five pro-Roe Justices.
Even assuming retirements from the incumbent pro-Roe phalanx, overruling the precedent would be largely gratuitous. Under the Privileges and Immunities Clause of Article IV and its interpretation in Doe v. Bolton, pregnant women enjoy a constitutional right to travel and to obtain an abortion in any state that permits them. Only the poor and destitute would be affected by an overruling of Roe, a result that would hearken back to Anatole France's asperity: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."
Depend upon it. Roe v. Wade will never be overruled.