Has Roe v. Wade been Overruled? Editorial Judgment in Cite-Checking Tools

Has ZiefBrief gone off the rails? Are we entering the realm of contentious ideological debate? Well… no. But we do have a point about legal research.

The other day we were preparing a simple exercise in finding cases by citation, using Roe v. Wade, 410 U.S. 113 (1973), as an example. We noticed that Shepard's gave Roe a red stop-sign (indicating the most highly negative treatment), and we explored further. It turned out that, as the Shepard's editors see it,  Roe was "Overruled as stated in" Gonzales v. Carhart, 127 S. Ct. 1610 (2007) [PDF; 73 pages].

Curious to see what the competition said, we ran Roe through KeyCite on Westlaw. KeyCite gave Roe a yellow flag. A step down from the red flag, the yellow signals, in the views of the KeyCite editors: "Some negative history but not overruled". When it came to the effect of Carhart on Roe, KeyCite said: "Modification Recognized by Gonzales v. Carhart."

The lesson is that researchers ultimately need to read the citing cases (here, Carhart) and decide for themselves what effect they have on the case they are researching (here, Roe). Cite-checking tools at best give attorneys signals as to potential problems. It is the attorney's responsibility to follow up.

So has Roe been overruled? That's not for Shepard's or KeyCite to say. Their core purpose is to alert researchers to a possible change in status and point to the citing cases (such as Carhart). The legal community as a whole needs to read those cases and debate their meaning before we can begin to work out where Roe stands today.