The question says it all really. Since the privacy rights expressed in Roe v. Wade have been used in other SCotUS findings that had nothing to do with abortion, would the case that could result in RvWs being overturned likely involve privacy or abortion itself?
I’m pretty sure the main legal challenge was the previous SCOTUS improperly finding a “right” where no such thing was explicitly stated and then contorting the notion of privacy to encompass abortion.
Justices such as Scalia (I believe) are strict constructionists. If the constitution does not explicitly say a thing then it is silent on the matter. No “reading between the lines” so to speak.
And while other rulings may rest on the notion of privacy the SCOTUS has certainly reversed itself in the past. They do not do so lightly but they do. It can easily be imagined that a conservative court would gut Roe.
Could a Republican-controlled Congress pass a law that makes abortion a felony - which would be signed by a prez such as McCain or Palin?
I doubt Congress - even a Pubby one - would pass such a bill, however. They raise the issue to woo the right wing and then forget about it when they win their seats.
If Roe was overturned it’d be up to the states to legislate abortion laws. As such you’d likely see a patchwork of different laws/restrictions across the country from very permissive to very restrictive.
I doubt Congress would pass a federal law on it.
The idea that there is a right to privacy in the Constitution long predates Roe. As far back as 1886 (Boyd v US) the Supreme Court recognised it under the fourth and fifth amendments (that was a search and seizure case) and it was found to exist under the first amendment in 1958 in NAACP v Alabama (dealing with freedom of association). The modern idea, that the right to privacy stems from these amendments plus the ninth, comes from the birth control case Griswold v Connecticut (1965). I suppose it’s possible that the Court could knock the last of these on the head, but they’re not going to roll back on the notion of a constitutional right to privacy in general.
Most likely scenario I would think is simply that a conservative majority holds that the established right to privacy does not encompass the right to terminate a pregnancy.
Most state legislatures would do nothing but racorously debate abortion from that point forward (the rest having quickly banned it).
Oh. Kind of like “democracy?”
That’s the way it is now, to some extent. The states are free to regulate abortions within the bounds of the variouis SCOTUS rulings.
The way Roe would be overturned would be for a state to pass a law banning abortion. This is what SD did a few years ago, but the voters overturned the law in a referendum before it could be tested in court. SD is, supposedly, one of the most pro-life states. I would be very surprised if any state actually banned abortions after an overturning of Roe. Maybe one or two, but we’re talking about states (like SD) where it’s already very difficult to get an abortion (maybe only one clinic in the whole state).
It must without a doubt involve privacy. First, they must figure out how to make a fetus a human being at the point of conception, then reach into a woman’s womb and extricate said fetus and give it the same rights every American enjoys. It’s the extrication part that makes it a privacy case.
Wrong analysis. If the S.C. were to rule against Roe v. Wade, it would not be taking a position on whether a fetus is a human being. It would be taking a position on whether there is a constitutional right to privacy that guarantees the right to kill a fetus (whether it be a human being, a homonculus, a “lump of tissue.”). Issuing an opinion on whether a fetus was a human being would be a pure advisory opinion (unless some pro-lifer challenged abortion-permissive laws on due process or equal protection grounds, which would be a non-starter).
In response to your title: the Constitution of the U.S. existed for 190 years without anyone realizing that it guaranteed across-the-board entitlement to abortion. It did not burst into flame during those 190 years, because of course it does nothing like (and was intended to do nothing like, and was written to express nothing like) guaranteeing abortion rights.
I am, on the other hand, surprised it did not burst into flames when Roe came down. If any Framers were alive at the time, the collective “Whaaaa???” would have echoed from coast to coast.
Of course abortion did not exist when the Constitution was written. But the right to privacy existed. the idea that the government has limits, that it can not intrude into your personal life did. The space between your personal life and governmental authority is the point. What I choose to do with my life is none of the governments business, unless it threatens the safety of the country. Abortion does not…
It didn’t exist as a medical procedure as we understand the term, but it most certainly existed. The rest of statement I agree with, particularly about there not being a sufficiently compelling state interest to justify interference. I can vaguely imagine some kind of Children of Men scenario where birth rates fall to a critical level, say one tenth of current, and that might justify some dramatic legal action.
And it was not illegal. Abortion statues didn’t appear until the 1820’s, and even those allowed abortions up to the time when the movements of a fetus could be detected (the quickening). Constitution framer James Wilson noted that an infants life beganwhen it could be detected moving in the womb:
So if the right to privacy regarding abortions was not expressed in the Constitution, it is not because it was not recognized; it was because it was unnecessary.
Does smoking weed threaten the safety of the country? I’m not disagreeing with your ideal situation for what is the governments business, but the current reality and that ideal would appear only to be nodding acquaintances.
With Benjamin Franklin, Alexander Hamilton, Gouverneur Morris and others, I’m pretty sure there were some abortions among them. They just weren’t safe (or illegal).
Go to any library that has the microfilm of the New York Times (which most college libraries do) and look at the classified ads for any day during the Civil War (most days before and after as well) and you’ll see advertisements for abortion. They don’t use the word- they use such words as “assistance in restoring monthly cycles” or “removal of obstructed menses”, and sometimes it’s a surgeon offering in-office services (surgeons were quite different from physicians or from our concept of surgeons incidentally= more like an EMT who could treat broken bones, perform an amputation, bandage wounds, etc.) and more often it’s a mail-order “tincture” or potion (an abortifacient). It was definitely known, and would have been a century earlier in Philadelphia and NYC as well, where the procedure was practiced by a wide range of people ranging from surgeons to mid-wives to apothecaries. (From 1591-1869 the Catholic church did not recognize it as murder until the 116th day from conception.)
Why would a due process challenge be a non-starter? It does say “nor shall any state deprive any person of life… without due process.” Just curious.
And I would think if Roe v. Wade was gutted, they would just say a right to privacy doesn’t exist with abortions. It wouldn’t overrule a right to privacy in general.
No American enjoys the right to use a person’s body without their permission. Nor should they.
Why should it be? It’s good law. It acknowledges that having an abortion is the right of every woman, and that it is no one else’s business.