I think the strategy going forward is to just grind them out and outlive them. Both Thomas and Alito want to retire, not die on the bench. But either exit will suffice for Dems to make significant changes to the Supreme Court in not too long a time.
Joe Biden is working to reform SCOTUS appointments as part of his legacy and I expect Harris/Walz will continue this work. Changes must be made.
There will come a time through the function of time alone when trying to take away this right will be seen as a cruel overreach – which it is. There will be a Supreme Court that ceases to interfere with it. Maybe even sooner than we think.
SCOTUS can’t do anything without a case being brought up in front of it. If Congress passes a federal law protecting abortion nationwide, SCOTUS can’t do anything unless someone sues for a very good constitutional reason.
And if such a case does come up, there is nothing unconstitutional about such a federal law.
The democrats are too spineless to make SCOTUS reforms. however the republicans are not. Same with the filibuster eventually. If/when the filibuster gets reformed it’ll be the republicans who reform it.
Having said that, the democrats did do some filibuster reforms under Harry Reid. He eliminated filibusters for all federal judge positions other than supreme court judge positions due to GOP obstructionism. But then the GOP eliminated the filibuster for supreme court judge positions.
Either way, what happened with the Lilly Ledbetter fair pay act of 2009? That was an executive and legislative attempt to overrule a judicial decision on the SCOTUS. That seems to still stand.
But either way, the democrats are too spineless to pass anything about abortion on a federal level. Plus how do you pass that through reconciliation, since you need something to reduce federal government spending to bypass the filibuster and pass it in the senate with 50 votes?
Also keeping the abortion issue alive on the federal level keeps voter turnout high.
If there’s a national US law guaranteeing aborting rights to all American women, I’d wager the SCOTUS will overturn it saying it’s a “God given right” for states to regulate that. Just my opinion of course.
Didn’t SCOTUS say abortion was a question for each state so would reject any federal rule on this?
Sure, we can wait for the court to balance back toward liberals but that won’t be any time soon. I seriously doubt any conservative justice will leave the court if there is a liberal president and senate.
It would be difficult, and it would take them a very long time to chip away at the new laws, but there are people who are fiercely dedicated to taking these rights away who will oblige as soon as possible. I expect the struggle to continue for some time. Ultimately, the right to abortion will prevail.
Simple answer to what SCOTUS (as currently constituted) would do if a federal right-to-abortion law was passed: suddenly, “states’ rights” would become incredibly important. All it would take for SCOTUS to act is some lunatic state like Texas or Florida bringing suit.
That was a purely statutory issue. In the Ledbetter case, the Court held that the statute of limitations in the federal statute began to run from the first pay cheque covering the period with the alleged discriminatory practice.
Congress then passed an amendment to the federal statute, stating that the statute of limitations resets with each pay cheque during the period of discrimination.
Since the original case was based solely on the interpretation of a federal statute, Congress could amend that federal statute and change the law.
That analysis doesn’t apply to a Supreme Court case that interprets the Constitution in a particular way. A constitutional amendment may be needed, or it may be that there is a way to enact a new law that is consistent with the ruling, but adances the same policy goals.
Is the current case law that in absence of a Federal Law that state law is controlling? Or is it that reproductive rights is not an enumerated power so the Tenth Amendment is controlling? That would make all of the different I think.
I figure that they would come at it from the 10th amendment, saying that abortion isn’t mentioned among the constitutional powers of the federal government so they can’t pass such a law. Of course if the Republicans got in and tried to implement a nationwide band, such an argument would no longer apply.
They’ll have to backtrack on this. (which they will)
Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.
I think Congress could do quite a lot with the interstate commerce clause:
prohibition on restrictions on women travelling to get an abortion;
prohibition on restrictions on doctors/clinics accepting out-of-state patients;
prohibition on any doctor or clinic having to show videos etc of ultra-sounds to a woman seeking an abortion;
prohibition on mandatory counselling prior to obtaining an abortion;
prohibition on mandatory medical advice, leaving medical advice solely to the doctor/clinic staff;
prohibition on waiting periods;
prohibition on laws which prohibit clinics, or impose onerous restrictions on clinics;
prohibition on requiring spousal consent;
regulation of consent requirements for under-18s (implementing mature minor principle).
None of those enter into the area of individual rights. They are to regulate the practice of medicine as part of the commerce clause. Obviously, these suggestions would facilitate individual choice, but by tying it to commerce, it may avoid issues tied to the 9th or 10th amendments.
I think the restrictions on travel would be an easy win. The others, like mandatory counseling would be seen as unrelated to interstate commerce by the current Court. Regulating the practice of medicine is traditionally a state by state thing.
If Congress has the right to legislate in those areas, they have a right to say a state can’t restrict abortion before 16 weeks (or whatever).
Remember- SCOTUS did not rule that abortion is illegal. They ruled that Women do not have a right to an abortion, thereby each state can make it’s own laws.
They already have . McConnell changed the rule so that it no longer applies to SCOTUS picks.
They cant until they get a solid majority in both houses and a Dem President. Which has not occured for any length of time since Roe.
No, they wont.
We seem to all forget that Roe was a bit of a stretch - Right to Abortion is part of Right of Privacy?
No, they said it was not a right. That left it up to each state.
Sure, and a farmer growing wheat to feed to his own animals was traditionally seen as local commerce; until it wasn’t, and could be subject to Congressional regulation, as part of inter-state commerce.
See as well the Civil Rights Act, which prohibits discrimination in public schools and public accommodation under the commerce clause. Local schools and local accomodation were once thought to be state matters; now they are also subject to federal legislation.
With congressional findings in the preamble to the statute that access to abortion services are significant for inter-state mobility, which in turn is necessary in a modern national economy; and that abortion services are an important part of inter-state commerce, with the need for uniform standards for all abortions as a matter of national commerce, I think there’s a good argument for a federal statute.
Heck, put a clause in that it only applies to doctors and clinics that offer their services on an inter-state basis, not just locally, and you can bet all clinics would say on their websites that they welcome patients from out of state, thereby participating in inter-state commerce.