What Loopydude and Little Nemo and so many others don’t understand is that the Supreme Court might go beyond just overturning Roe v Wade and leave the issue to the states. They might rule that a fetus is a person whose right to life must be defended. This would make abortion illegal everywhere in one fell swoop unless the mother’s life were in danger. Rape? Incest? Extreme birth defects? Tough luck!
Well, I understand that, but is it all likely?
Yes, I understand it’s possible. But, as I wrote, the backlash against the Republicans would be so overwhelming that they’d never allow it to happen. You think Karl Rove would sign off on anything that would drive 10,000,000 female voters to switch to the Democrats?
Unless I’m mistake, Roe v. Wade was not decided on the basis of the putative state of the fetus; it was decided upon what the majority felt was a woman’s right to privacy. Basically, it was argued a woman’s right to abortion is covered by the US constitution because it’s a private affair, and her privacy is protected. Obviously, this was not a unanimous interpretation of constitutional law. The most tenable means of overturning Roe v. Wade that I can think of is for the SCOTUS to rule, simply, that the Constitution cannot be interpreted to suggest denying a woman the right to an abortion violates her right to privacy.
I’m also pretty sure that the Constitution says absolutely nothing explicit about the rights of ebryos, or feti, or their “personhood”. I do not doubt that one or more of the Justices opposed to abortion will rule based upon their personal beliefs in the personhood of a fetus. However, they may not be able to use these beliefs to justify their ruling, because they would be hard-pressed to explain their position on Constitutional grounds. It may be a lot easier to attack the problem from the privacy angle, I should think.
In that case, the issue goes back to the States. It’s an incomplete solution, but a start, pending an amendment to the US Constitution that explicitly defines pre-natal personhood. Some States may have laws already on the books or full-blown State constitutional amendments banning abortion (and which were nullified by Roe v. Wade), and citizens of those States would now have no recourse. In other States, with no such laws, there’s no issue. That’s how things were prior to Roe v. Wade, so it seems to me most reasonable that a return to that state of affairs is the path of least resistance to immediate results for abortion opponents.
Very unlikely. In the 5-4 Planned Parenthood decision, O’Connor, Kennedy and Souter - three Reagan appointees - all came down on the side of preserving the Roe’s core components. In relevant part:
505 U.S. 833, 833.
Those are three justices who’d almost certainly opine consistently were the issue to come up again, alongside Ginsburg, Breyer and Stevens, three reliably liberal minds, making the outcome 6-3, with Rehnquist, Thomas and Scalia dissenting. FYI, the fourth dissenter in PP v. Casey was Byron White, who is obviously no longer a factor. So, in order to stack the bench with a conservative majority sufficient to dispose of Roe, GWB would have to replace the ailing C.J. Rehnquist with another conservative justice, AND appoint two more conservative justices to posts whose current occupants aren’t going anywhere anytime soon.
Having said that, I agree with Bricker and Manhattan and Little Nemo that one of the best things Democrats could do for abortion rights in this country is to let go of the opposition to an absolute ban. While only 20-30% of Americans believe that abortions should be allowed under anycircumstance, a full 80% of US voters FAVOR abortion rights under some circumstances, the most widely-supported of which is, of course, medical necessity. (“CROSS-EXAMINATION: Letting Go of Roe” The Atlantic Monthly, Jan/Feb. 2005 ). Dropping opposition to Republican efforts to impose an all-out ban on a practice supported in some form or another by an overwhelming number of Americans would force Republicans into the untenable “put-up or shut-up” situation of having to choose between a small but vocal number of right-wing absolutists and a much larger constituency of moderates and swing centrists, as well as, of course, leftists. I think, as Little Nemo has also suggested, that the Bush administration probably thought this through well before November 2004, and that Rove and other experts in the White House and Congress realized that as long as the abortion fight stayed in the Supreme Court and not the legislature, Republicans could make toothless promises to a right-wing constituency under the convenient cover of a Supreme Court decision to the contrary and vow to continue to “fight the good fight,” all the while knowing that as long as their hands were tied by the Supreme Court, they would never actually have to go to war…
Opps. Souter was a Bush appointee. If my old Constitutional Law professor were here, he’d beat me.
One shouldn’t ignore the possibility that the U.S. Congress could pass a law banning abortion. They have no explicit constitutional authority to do anything of the sort, but this won’t necessarily stop them.
The first sentence of the so-called Partial Birth Abortion Ban Act passed by Congress about two years ago is “Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.”
Nowhere else in the act is the phrase “in or affecting interstate or foreign commerce” further elucidated or even mentioned at all (just try searching the text for “interstate” or “commerce” if unconvinced). It is simply assumed without explanation that every abortion affects interstate commerce enough to fall under the purview of this act.
Of course, it’s possible that the Republican leaders of Congress had no intention of producing a law that would actually pass Constitutional muster. That would tend to support jsgoddess’s thesis, I believe.
I would be strongly against such a ruling.
Even though it would create a result I gavor, there is no federal constitutional power to prohibit abortion; creating one would be the same sort of judicial activism that I abhor when I see it on the other side.
And this is a note for all those who flippantly say that “judicial activism” is just code for “result I don’t like.” It’s not. It refers to a particular analytical approach. Here’s a perfect example. A decision like the one 2sense envisions would be a result I like, but by a process that would be deeply flawed. And it would be activist.
I think outlawing abortion presents a double edge sword to Republicans.
A lot of pregnancies end in abortion. This means that we (as a society) don’t need to pay for education, food stamps, subsidized housing, immunization programs, social services including foster care, etc. for millions of children. End abortion and the costs of all these things goes up.
Women abort for many reasons, but two of the common ones are birth defects and financial. Not aborting for either of those reasons results in a child that is “expensive” on the system.
I’m not saying that we should (or shouldn’t) put a price on life. But I’d like to see things like national healthcare for children, guarenteed subsided daycare for low income people, dropping the five year lifetime welfare rule, etc. IF we were to outlaw abortion. I think that the GOP is rather divided on exactly this. Smart people realize that there will be a societial cost to banning abortion - precisely the types of costs fiscal conservatives don’t want to bear.
I wouldn’t bother trying to argue that something is invalid under the interstate commerce clause… If a bat-shit loony former strip-mall-owner-turned-congressman wants to regulate some behavior he views as atrocious, he can usually get off to the races by proposing that some aspect of the behavior either moves in or affects interstate commerce.
Dangerosa, how does outcry over the rising cost of a public healthcare system suddenly burdened with the needs of millions of unaborted lower-socioeconomic-class babies threaten the political agenda of elected republicans? All those things you mentioned:
are programs that Republicans don’t want anyway. Notwithstanding our ongoing pork-fueled financially orgiastic adventures in Homeland Securityland, isn’t the dramatically rising cost of a domestic social welfare program proof enough to a typically fiscally conservative republican that the program doesn’t work, and excuse enough to drum up support to terminate it?
Not if it provides ammo to the Democrats in the form of improperly cared for children. Photos of starving kids helped get Johnson and FDR elected.
If, indeed, pro-lifers care about the whole child and not just the fetus (and I think most of them do) once abortion is outlawed I suspect their focus will move to caring for the whole child. The evil that is abortion (in their minds, I’m pro-choice) will be “gone” (debatable, I kind of figure the middle class will travel out of the country if they need an abortion) but there will be other societal ills to attack that benefit children. I’m not sure how much support they can (or wish to) drum up for the 1950s mentality of forcefully removing (healthy) children from the care of single (white) mothers.
Caring for children is expensive. Caring for other peoples children (because nearly everyone believes THEY are fine parents, but, boy, are the Smith’s doing a lousy job) is more expensive. Not caring for those children is even more expensive, as I believe they will believe that those “uncared for” children will contribute further to our moral decay.
The GOP seems to have a split between social conservatives that wish to outlaw abortion, and fiscal conservatives, who don’t want their money going to support someone else’s kid they can’t afford. While there is some overlap, I don’t know how much.
Last info I saw (and I’m out of the debate, so I could be wrong) one out of four pregnancies is aborted. That means if we want to keep class sizes the same, we need 25% more teachers, 25% more classrooms - and if you want to go there, 25% more potential vouchers for private school. Education is important to Democrats and Republicans alike - even if food stamps and subsidized housing isn’t.