What happens if the supreme court overturns roe vs wade

Factual Questions
21

Of course, there’s nothing in the Constitution that says that privacy is a fundamental right either, so the point still stands.

If one were to say that there’s no right to burn an American flag in the Constitution, but the SCOTUS has found such a right anyway, this would be incorrect. The 1st amendment protects free speech generally, of which flag-burning is a form.

But saying that there’s no right to control of one’s own reproductive decisions in the Constitution, but that the SCOTUS has found such a right anyway, is simply an accurate shorthand for saying that SCOTUS has found a right not explicitly outlined in the Constitution (privacy), and then determined that abortion falls under than penumbra.

22

Unless I’m mistaken, as “calculations about the risk to the mother vs… presumed rights of the fetus” were never part of the RvW decision, “medical advances that change” these would not be grounds for overturning that decision.

It is my understanding that if the decision were reversed, the legal situation would revert to pre-RvW standards.

However, I ANAL.

23

The SCOTUS is loathe to reverse itself. It’s a terribly ugly little thing when you (and those that have come before you) are placed with arguably the highest of powers and get it wrong. In this case there seems to be a never ending series of revisions. But oddly, it might be the very 14th amendment that was used to “create” the right to an abortion that protects it.

I don’t see anything in there about “all persons about to be born” in there. Nor would any strict constructionist.

Were Roe v Wade to be overturned those that support abortion would simply point this out. We’ve already seen skirmishes along this line in cases where unborn fetuses are killed due to the murder of the mother. Pro choice suppoters see these as attempts to give the fetus “citizen” status and therefore protection from abortion.

24

I decided to answer this because I can respond on a factual basis, even though IANALawyer wither.

Yes, you are mistaken. Issues of medical technology and the risk factors to the mother are among the key elements to the decsion. You may read the decision here.

For instance, some text from Justice Brennan’s decision:

25

Interesting! Thanks!

That’s 2 posting-while-ignorant violations for me in as many days! Yikes! :eek:

26

The very heart of the decision, the starkest statement of their decision, is this:

They went on to further conclude that the state did not have a sufficient interest in the particulars of the individual dispute.

Of course even this is my non-lawyerly opinion, not a matter of fact. But anybody should be able to understand that this opinion might be overturned on more than one issue. It might be found that the right of privacy dpes NOT include abortion, or it might involve some broader refutation or redefinition of the right to privacy, one that might have many unforseen social consequences.

Please someone, explain to me again why the OP is a factual question with a factual answer?

27

It’s a factual question because it was asking for the immediate legal effects of the overturn of Roe v. Wade, not the long term judicial or political effects.

The brief and factual answer, already given, is that existing state statutes on abortion would immediately apply, and that there is no federal law that prevents a woman from traveling from a state where an abortion would not be available to one where an abortion would be available.

28

Wait wait wait. Substantive Due Process rights are rights against state action. The 14th Amendments proscriptions apply to states–not individuals. http://caselaw.lp.findlaw.com/data/constitution/amendment14/18.html#3 In the death penalty cases, the state was attempting to execute people. The privacy cases all deal with state laws that prohibitted various conduct. The state was trying to enforce those laws through criminal prosecution.

Here a state would have either repealed an abortion statute, not enacted one, or declined to prosecute. These are almost certainly insufficient to constitute state action.

This raises an issue that **TJVM **alluded to. If SCOTUS finds that unborn children have rights under the 14th amenment, Congress might well try to legislate on the subject, which would then raise two additional issues. First does Congress have the power to legislate on the issue? And second, if Congress does have the power to legislate, and does so, do the negative implications of the Commerce Clause bar states from regulating the issue?

29

Well, theoretically, the Supreme Court could “easily” rule anything. They could rule that cats are persons, entitled to due process of law.

The Constitution says nothing about cats, either. And it doesn’t define what a “person” is. So if the Supreme Court were to find that cats are persons and have due process rights, they’d be perfectly within previous analytical precedent. How could you complain about one decision and support the other?

Personally, I can complain because in both cases (finding that unborn children have due process rights, and finding that cats have due process rights), the Supreme Court would be going far beyond the bounds of what is stated in the Constitution and way beyond the bounds of what is generally accepted as the definition of “person”, as used in the Constitution.

30

Contrary to informed jurisprudential opinion, not everything is justifiable under the Commerce Clause!! :slight_smile: But you will note that the Fifth Amendment contains a due process requirement applicable against the Federal government – every so often a 5th amendment due process case involving federal law and/or officials will come before the court, as opposed to the far more common 14th amendment due process cases based on state law and/or officials.

31

Of course**, polycarp **is right. For years, many thought that Congress had nearly plenary power under the Commerce Clause. In a case involving firearms in schools, SCOTUS finally set us straight. http://supct.law.cornell.edu/supct/html/93-1260.ZS.htm. See, U.S. Constitution - FindLaw. There are, in fact, limits to the Commerce Power.

But doesn’t this beg the question? Does the Fifth Amendment give Congress leislative authority? If so, we have a similar problem. The issue will be the breadth of preemption under the Supremacy Clause. http://caselaw.lp.findlaw.com/data/constitution/article06/02.html#1

32

Ot glossed over Griswold as being needlessly detailed to the point I was making. False Dilemma.

The crux of my point was that when you ride the Substantive Due Process roller coaster, there’s no real limit on where you’ll end up. There are certainly predictable limits, based on practical considerations, but few theoretical limits once you’ve accepted that method of analysis.

But your point is certainly true: the SC found a right to privacy in the Constitution before Roe was ever argued, and, indeed, based much of Roe on that finding.

33

Er…

Yeah, OK.

That’s a good point. That’ll teach me to hyperbolize…

34

To try to keep this somewhat in the “General Questions” category, it should be noted that when the Supreme Court “overturns” a decision, it doesn’t just pull up the previous case and say, “Our bad, scratch that.” Rather, in the course of deciding a case currently before the court involving similar questions of law, the Supremes will issue an opinion that directly or indirectly conflicts with all or part of the previous decision (or decisions). This new ruling becomes the law of the land, and the justices usually go to great pains to explain what specific aspects of the previous decisions are nullified or modified and what their new ruling means.

35

I gotta disagree with that one. . .

36

Yeah, I may have overstated the case, particularly in regards to decisions of the last decade. The more evenly split the court, the more vague and ambiguous the decision are to hold a majority of justices.

37

Exactly. And they freqently argue in footnotes about the implications of the various opinions for the precedential value of previous cases. Don’t get me started on Bush v. Gore or U.S. v. Lopez.

38

Stare Decisis for one thing.

39

As they say in law school, you have to allow the hypothetical. The OP asked what would happen if Roe v. Wade were overturned. So stare decisis does not argue that unborn children do not have rights if we are assuming that *Roe *was overruled.

Stare decisis argues against reversing *Roe *in the first place, as the Court found in Planned Parenthood v. Casey, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).

40

The question posed in the OP is that Roe v Wade is overturned. I think we have to be clear that, contrary to some demagogic remarks, courts do not legislate. What they do is decide individual cases as they come before them, and in so doing, set precedent which other courts may, and in some cases are obliged to, follow, in dealing with similar cases.

So the question then becomes, what are the circumstances in which Roe v Wade is overturned? And the answer to the hypothetical must deal directly with that situation.

While I can have a great deal of sympathy for the proposition that an unborn fetus is a person with rights, the Constitution does not deal with the question of what “persons” have rights, but rather with the rights of citizens of the United States. To a lesser extent, it has been interpreted to deal with what rights legally recognized persons who are not citizens may have – legally resident aliens, corporations in their capacity as legal persons, etc. But its focus as regards rights are on those possessed by citizens.

That may be important to keep in mind, given the Amendment XIV definition of citizen.

Now, the principal effect of Roe v Wade was in suggesting that a woman has a right to privacy over her own body and what shall be done with it, which a state may not supersede by mandating that she not terminate a pregnancy. (Let’s note that an abortion is a medical or surgical procedure that has the effect of terminating a pregnancy – women have, for example, D&C’s all the time when not pregnant, for medically appropriate reasons; a D&C on a pregnant woman becomes an abortion. So technically there is no “right to have an abortion” – what there is, is a prohibition on a state’s regulating a right to teminate a pregnancy. Semantics, but I think important ones, given the circumstances.

Also, Roe v Wade did not bar the prohibition of abortions generally; it merely specified that there were times and circumstances when states could not impede the woman’s right to terminate her pregnancy.

So the question of what the specifics of the case in which the overturning of RvW are, and how the decision is written, becomes paramount.

It’s very easy to write headnotes that say “Prohibits states from banning abortions” – but that’s not what the decision says; that’s not how it was generated; and that’s not what the issue reversing it may be.

I personally think that Mr. Blackmun engaged in some of the sloppiest legal writing on record in that decision, producing the bastard child of a Brandeis brief and a J.A.M.A. case history rather than a Supreme Court decision – but that is neither here nor there.

Justice O’Connor’s stance on issues regarding abortion generally may be of particular interest in analyzing what might be the outcome of such a case.