# What will SCOTUS do if Women Prevail in the Election and Pass National Abortion Access? **URL:** \ **Category:** Politics & Elections\ **Created:** [August 20, 2024, 4:09pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947 "2024-08-20T16:09:58Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Aspenglow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aspenglow/32/76_2.png) [@Aspenglow](https://boards.straightdope.com/u/Aspenglow)\ **Post date:** [August 20, 2024, 4:09pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/1 "2024-08-20T16:09:59Z")
Continuing the discussion from [The Woman Factor in the Clinton Loss, and Possible Harris Win](https://boards.straightdope.com/t/the-woman-factor-in-the-clinton-loss-and-possible-harris-win/1005829/84): > [@The Woman Factor in the Clinton Loss, and Possible Harris Win](https://boards.straightdope.com/t/the-woman-factor-in-the-clinton-loss-and-possible-harris-win/1005829/84): > > An interesting side-question: > > Assume there’s enough of a blow-out that the upcoming Congress does pass a comprehensive Federal law requiring abortions be available to everyone everywhere with the states prevented from regulating further. > > The Federalists’ / Heritage Foundation’s pet SCOTUS that trump compliantly emplaced will have ample opportunity over the next decade or so to shred any such legislation. How will they justify their totally predictable decision? 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. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [August 20, 2024, 4:17pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/2 "2024-08-20T16:17:37Z")
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. ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [August 20, 2024, 4:18pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/3 "2024-08-20T16:18:31Z")
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. ---
**Author:** ![Mallard](https://avatars.discourse-cdn.com/v4/letter/m/b9bd4f/32.png) [@Mallard](https://boards.straightdope.com/u/Mallard)\ **Post date:** [August 20, 2024, 4:19pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/4 "2024-08-20T16:19:05Z")
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. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 20, 2024, 4:20pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/5 "2024-08-20T16:20:10Z")
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. ---
**Author:** ![Aspenglow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aspenglow/32/76_2.png) [@Aspenglow](https://boards.straightdope.com/u/Aspenglow)\ **Post date:** [August 20, 2024, 4:20pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/6 "2024-08-20T16:20:47Z")
> [@Velocity](#): > > 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. 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. ---
**Author:** ![Aspenglow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aspenglow/32/76_2.png) [@Aspenglow](https://boards.straightdope.com/u/Aspenglow)\ **Post date:** [August 20, 2024, 4:23pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/7 "2024-08-20T16:23:42Z")
> [@Whack-a-Mole](#): > > 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. This is all true. But as Ruth Bader Ginsburg found out, sooner or later, you don’t have a choice. ---
**Author:** ![Euphonious\_Polemic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/euphonious_polemic/32/3002_2.png) [@Euphonious\_Polemic](https://boards.straightdope.com/u/Euphonious_Polemic)\ **Post date:** [August 20, 2024, 4:25pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/8 "2024-08-20T16:25:32Z")
> [@Velocity](#): > > And if such a case does come up, there is nothing unconstitutional about such a federal law. What does the constitution have to do with the current SC rulings? They will rule based on their religion, and what they personally want. ---
**Author:** ![Mallard](https://avatars.discourse-cdn.com/v4/letter/m/b9bd4f/32.png) [@Mallard](https://boards.straightdope.com/u/Mallard)\ **Post date:** [August 20, 2024, 4:34pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/9 "2024-08-20T16:34:35Z")
Agreed. The current SCOTUS has been clear that stare decisis means absolutely squat. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [August 20, 2024, 4:43pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/10 "2024-08-20T16:43:30Z")
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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 20, 2024, 6:35pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/11 "2024-08-20T18:35:32Z")
> [@Wesley\_Clark](#): > > 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. 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. Or, you change the composition of the Court. See: > **[Lilly Ledbetter Fair Pay Act of 2009](https://en.wikipedia.org/wiki/Lilly_Ledbetter_Fair_Pay_Act_of_2009)** > > The Lilly Ledbetter Fair Pay Act of 2009 (Pub. L. 111–2 (text) (PDF), S. 181) is a landmark federal statute in the United States that was the first bill signed into law by U.S. President Barack Obama on January 29, 2009. The act amends Title VII of the Civil Rights Act of 1964 and states that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action. The law directly addressed Ledbetter v.... ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [August 20, 2024, 6:50pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/12 "2024-08-20T18:50:18Z")
> [@Velocity](#): > > If Congress passes a federal law protecting abortion nationwide, SCOTUS can’t do anything unless someone sues for a very good constitutional reason. 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. ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [August 20, 2024, 7:03pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/13 "2024-08-20T19:03:10Z")
> [@Euphonious\_Polemic](#): > > What does the constitution have to do with the current SC rulings? They will rule based on their religion, and what they personally want. 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. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [August 20, 2024, 7:20pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/14 "2024-08-20T19:20:04Z")
> [@Buck\_Godot](#): > > 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. One of the few times I would say it should be the Ninth Amendment not Tenth. I control my reproductive rights, not my state. ---
**Author:** ![Horatius](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/horatius/32/3572_2.png) [@Horatius](https://boards.straightdope.com/u/Horatius)\ **Post date:** [August 20, 2024, 7:20pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/15 "2024-08-20T19:20:29Z")
> [@Velocity](#): > > 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. We’ve already seen this court [make rulings built on entirely fictitious cases](https://newrepublic.com/post/173675/supreme-court-just-used-fake-case-make-easier-discriminate-gay-people), or [using “plaintiffs” who never actually signed on to a case](https://prospect.org/justice/2023-06-30-supreme-court-decides-fake-plaintiffs-good/), and rule on entirely partisan religious and political beliefs. The previous norms no longer apply. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [August 20, 2024, 7:24pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/16 "2024-08-20T19:24:31Z")
> [@Buck\_Godot](#): > > 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 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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 20, 2024, 7:34pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/17 "2024-08-20T19:34:01Z")
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. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [August 20, 2024, 7:54pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/18 "2024-08-20T19:54:52Z")
> [@Northern\_Piper](#): > > 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). ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [August 20, 2024, 8:05pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/19 "2024-08-20T20:05:14Z")
> [@Aspenglow](#): > > 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. 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. > [@Wesley\_Clark](#): > > If/when the filibuster gets reformed it’ll be the republicans who reform it. They already have . McConnell changed the rule so that it no longer applies to SCOTUS picks. > [@Wesley\_Clark](#): > > But either way, the democrats are too spineless to pass anything about abortion on a federal level. 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. > [@Mallard](#): > > 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. 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? > [@Whack-a-Mole](#): > > Didn’t SCOTUS say abortion was a question for each state so would reject any federal rule on this? No, they said it was not a right. That left it up to each state. > [@Saint\_Cad](#): > > Is the current case law that in absence of a Federal Law that state law is controlling? In the absence of a federal Right… ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 20, 2024, 8:18pm UTC](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947/20 "2024-08-20T20:18:24Z")
> [@Procrustus](#): > > 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. 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. > **[Wickard v. Filburn](https://en.wikipedia.org/wiki/Wickard_v._Filburn)** > > Wickard v. Filburn, 317 U.S. 111 (1942), was a landmark United States Supreme Court decision that dramatically increased the regulatory power of the federal government. It remains as one of the most important and far-reaching cases concerning the New Deal, and it set a precedent for an expansive reading of the U.S. Constitution's Commerce Clause for decades to come. The goal of the legal challenge was to end the entire federal crop support program by declaring it unconstitutional. > An Ohio farm... 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. > **[Heart of Atlanta Motel, Inc. v. United States](https://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel,_Inc._v._United_States)** > > Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), was a landmark decision of the Supreme Court of the United States holding that the Commerce Clause gave the U.S. Congress power to force private businesses to abide by Title II of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, religion, or national origin in public accommodations. > This important case represented an immediate challenge to the Civil Rights Act of 1964, the landmark piece of ci... 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. [Next page](https://boards.straightdope.com/t/what-will-scotus-do-if-women-prevail-in-the-election-and-pass-national-abortion-access/1005947.md?page=2)