Making abortion and gay marriage illegal in the US

This is probably a stupid question but…

What would need to happen in order for a US president to make abortion and/or same-sex marriage illegal in all states? Who would he need to appoint? Who would he need to convince? What procedures would have to happen for us to wake up one day in a nation where it’s totally illegal to get an abortion or marry someone of the same sex?

It seems to me that it’s near impossible for a president to “make it so.” But yet, those two things are issues that sway people to vote for a person.

Bonus question: Did GWB ever get anywhere towards making either of these things illegal? I am not sure but I would venture to guess it was part of his campaigns…

He certainly couldn’t do it by Executive Order.

Because abortion is recognized as a Constitutional right, the President would need to make sure that he had five dishonest votes on the Supreme Court, and then push a case through seeking to recognize a due process “right to life” for the unborn.

Or the President could get five honest votes on the Court and merely overturn Roe v. Wade. That would leave the issue in the hands of the states, and out of the reach of the president.

Or the President could get 218 votes in the House and 51 votes in the Senate to pass a constitutional amendment outlawing abortion throughout the land. That would then require 37 states to approve it.

Same-sex marriage – same general approach. In neither case could he do it alone.

Two nitpicks of Bricker’s excellent summary:

  1. Three-fourths of the 50 states is 37.5 states, and since you can’t half-ratify an amendment, it therefore requires 38 states.

  2. The President could do either by Executive Order, provided that he had the dishonest five justices that Bricker postulated who were willing to uphold his right to do so in a legal challenge, and of course provided that respect for rule-of-law continues in place so the general public is not up in arms about it.

But what if the ratification vote is split 50/50? :smiley:

Then whatever the legislative house’s rules for the effect of a tie vote may be, is what prevails. This might be:
[ul][li]Mathematical tie is deemed defeated, as not having obtained a majority.[/li][li]Presiding officer casts a tie-breaking vote.[/li][li]Lots are drawn to break the tie.[/li][li]And presumably several other alternatives I have not considered.[/ul][/li]
It would be very interesting if, a controversial amendment having been passed and ratified by the legislatures of 37 states, it is narrowly carried in the lower house of a state legislature and then receives a tie vote in the upper house, which in imitation of the U.S. Senate is presided over by the state’s Lieutenant Governor, with only the casting vote in case of tie – and he or she, in a position considered relatively obscure nationally, ends up being the one person to decide whether the U.S. Constitution is amended or not. :slight_smile:

No. Executive orders only apply to the proceedures of executive branch agencies. No matter how activist a Supreme Court Justice was, he wouldn’t uphold a president’s right to ban abortion or gay marriage by executive order. I mean, if Earl Warren and William Douglas had a kid, and then that kid and the kid of Rufus Peckham and James McRenolds had a baby, and that baby was on the Supreme Court, he wouldn’t be that activist.

Couldn’t you do it in a round about way

For instance, require all doctors performing abortions to be certified. And then refuse to have certifications.

Or something like the 21 drinking law, where states are free to lower the drinking age but then they lose highway money.

Like people performing gay marriage can’t get driver’s licenses.

Poly, Poly, Poly . . . You missed the bigger nitpick in Bricker’s post!

Assuming that there are no vacancies in Congress, and that all members are present and voting, it takes 290 Representatives and 67 Senators to pass a constitutional amendment!

Yeah, I was wondering about that.

The decision in Roe v. Wade (no matter how much I favor it) was extremely dubious on constitutional grounds. It was based on a new right–right of privacy that is not explicit in the constitution and not obviously implicit either. So if McCain (or Bush for that matter, by means of an interim appointment as was discussed recently on TSD) were to appoint another conservative, then Roe v. Wade is likely toast. And that is the only way a president can bring that about, but it is all too likely. Notice thought that would only allow, not require, a state to ban abortion. I imagine most NE states would not and then any but a poor woman could easily get an abortion just for the price of a trip to one of those states.

As for same-sex marriage, AFAIK there has never been a supreme court decision that bears on the subject. Some see an analogy with state laws banning inter-racial marriage. I don’t. Let me say that I’m in favor of allowing same-sex marriage; it is just that I reject the analogy. My guess is that if it ever were the subject of a supreme court decision, I would guess they would uphold state laws banning it. On the other hand, the strict constructionists (I think there is only one–Clarence Thomas, whatever the others claim) would have to admit that, under the “full faith and credit” clause, same sex marriages performed in jurisdictions where they are legal would have to be recognized in all states. It is possible that with Clarence Thomas’s vote they would so rule. But don’t bet on it.

It is hard to see how any action by the president, short of appointing justices who agree with him (and getting them through the senate) could bear on either question.

I have always been ill-at-ease over Roe v. Wade. At the time, I said to my wife that it was a weak reed and that it would cause the women’s movement to stop pushing the point by getting states to repeal their anti-abortion laws. And so it is proving. If not now, some future court will fail to uphold it. On the other hand, the growing religiosity in the US may make it impossible to get the state goverments to allow abortion. Back to coathangers, I guess.

Out of wonder, setting aside Roe v Wade for a moment (pretend it’s overturned), couldn’t they just abuse the spending power like they seem to do quite often (NCLB, well, really,t oo many laws to count) and give the state a large grant if they pass a law banning abortion/gay marriage?

Why dishonest?

Wrong. The right to privacy was established at least as early as Griswold v. Connecticut in 1965, which was not even a particularly close decision (7-2).

Also wrong. It’s been established (though I don’t remember how, when, or by whom) that Full Faith and Credit doesn’t apply to marriage. For some reason.

That’s what I wondered too. And what makes abortion ‘recognized as a constitutional right’ other than the opinion of the Supreme Court? It doesn’t have the protection of a constitutional amendment.

Don’t constitutional challenges require that a law be challenged? I suppose five sympathetic SC justices (assuming a President could get them all approved by Congress, but let’s assume he can) could rule that one particular state’s anti-abortion or anti-SSM law is fine, after some citizen has challenged it, which would invite other states to adopt identical legislation if they wanted to. Many would not, so while abortion or SSM gets banned in Alabama, the Carolinas, Georgia, Texas, etc. they remain unbanned in California, New York, Massachu-, Massatchu-… Vermont.

To get a Federal ban, which would affect all states, the first two people a Prez needs to get blackmail material on would be the Senate and House majority leaders, I reckon (having photos of them making out in an airport bathroom would help) who between them could draft and ram through a Federal law (assuming enough congress members can be co-opted as well) and when the inevitable constitutional challenge comes up, that’s when he uses his pocket five justices.

So, seven people minimum. Possibly a few hundred to assure a passing vote in congress.

In many countries where abortion is (or when it was) illegal, it is (or was) illegal also to get one abroad; the principle is the same behind making it illegal for one of your nationals to perform abroad other activities which are illegal at home but not in the place they’re performed (some forms of sex crime, for example). I suspect that would be put in place by the lawmakers at the no-abortion states, too.

The President better have some deep hooks in the medical community, then, because without the complicity of doctors and pharmacists willing to squeal on their patients, who would know if an early-term pregnant woman took a vacation to Canada and came back unpregnant?

That’s assuming the the law isn’t being passed just for symbolic value.

I haven’t said it was easily enforceable; it’s witchhunt-type material. A ratting neighbor can start the process, and, even if there’s no conviction, the woman in question is affected negatively by the investigation.

Agreed. It would be very similar to the stigma sex offenders bear at the moment.

I may be presumptuous here, but I suspect that Bricker was indicating a personal view that the Constitution is in fact silent on the question of abortion, and that the proper result should be to kick the issue back to the states. Thus, for a Justice to vote in favor of a “right to life” that affirmatively enshrines a prohibition into the Constitution would be dishonest.

I’m curious; pre-Roe, how common were criminal cases against women who had abortions (as opposed to cases against those who performed the procedure). Are there any statistics available?