Why do you think Roe was decided the way it was in the first place? Because the Supreme Court found that laws against abortion were unconstitutional. The right to abort a pregnancy was ruled to be in the Constitution all along. Therefore overturning it would require amending the Constitution. You don’t have to repeal an amendment, just ratify a new one.
Before anybody complains that it isn’t, the principle is Substantive Due Process, derived from the 5th and 14th.
But the court does change it’s mind.
Say that Ginsburg, Kagen and Sotomayor all left the bench today, and were replaced with conservative judges, who subsequently heard an abortion case and ruled abortion unconstitutional. They would state the the right to abort a pregnancy was not in the Constitution all along.
I’m not saying this is likely, or desirable. But the court does reverse previous decisions. What would happen then?
True, but the same could happen to Heller and McDonald. Reverting 2nd Amendment jurisprudence back to “As long as the National Guard exists, ban whatever guns you want, whenever and wherever”. Same difference.
And do you think Congress is more likely to pass a “ban all guns” bill or a “ban all abortions” bill?
Sort of. Substantive Due Process is the idea that the courts have the right to protect rights even if they aren’t specifically enumerated. The right picked though was a ‘right to privacy’ which they felt encompassed the decision to have an abortion.
As to whether a right to privacy exists in either the Constitution or as a fundamental right, that’s a matter of quite considerable debate. We certainly don’t think a right to privacy lets a doctor prescribe heroin for an ingrown hair which would seem to follow if we take Roe v. Wade at face value. As the NSA has shown, we don’t even think a right to privacy protects your privacy which is odd. The Constitutional right to privacy seems to mostly just protect your right to an abortion, but not just any abortion, only abortions prior to viability, then the right to privacy apparently ceases to exist for that particular circumstance. Why you have a right to privacy protecting abortion at 20 weeks, but not 24 weeks is anyone’s guess. The workings of that particular constitutional right are fuzzy to say the least. I think that you would find that many if not most legal scholars who are actually willing to enter into a conversation about Roe v. Wade find it very lacking. Even Justices Ginsberg and Stevens who I think we can safely say are hardly bastions of conservative, pro-life thought found Roe v. Wade flawed as a legal opinion.
My own take for what it’s worth is that this is an issue that should have been settled at the ballot box. I think that Roe v. Wade did great harm to the idea of an independent judicial branch and led directly to the anti-government conservative movement of today (though it was hardly the only thing that led us here.) I also think that without Roe v. Wade, abortion rights would not be too dissimilar from what they are today, but without the large-scale anti-abortion movement feeding the Republican Party. I might even go so far as to say without Roe v. Wade, abortion would be even more accessible than it is now. Instead of it being a large national fight against essentially an unelected entity that requires huge amounts of grass roots support, it would have been fought piece-meal in individual state houses. Sure, some of those state houses would still be totally anti-abortion, but I would wager that in some of those states where you have a single clinic and no doctors willing to serve in it would likely today have legal abortion and more access without Roe v. Wade galvanizing the pro-life movement. Anyway, those are just my thoughts on the matter.
Personally, in the current climate, I think an abortion ban is more likely, though neither is actually likely at all.
Our country leans right. Roe vs Wade is seen as more vulnerable, as illustrated in this thread, because there’s no explicitly enumerated right associated with it. And the recent trend in the State legislatures has been more restrictions on abortion and fewer restrictions on guns. There are already states, like South Dakota, where you basically have to drive hours to a different state if you want an abortion, whereas Illinois, the last holdout, finally added provisions for concealed carry in the last few years.
That said, the recent trends could change or reverse at any time. And either way, I don’t see any ban being remotely probable.
Not true. Roe v. Wade was a Supreme Court decision, and could be overturned by another court decision (or a constitutional amendment). The 2nd Amendment can only be overturned by another amendment, just like prohibition was imposed, then cancelled.
Legal eagles have been warning us for over 20 years now that Roe v. Wade was only 1 SCOTUS justice’s vote away from being reversed, and although the seat occupiers have changed, that still is the expected margin. The only reason why it hasn’t been done is they haven’t been confronted with an ideal case. It’s only a matter of time.
Two judges (White, Rehnquist) disagreed with your claim that “the right to abort a pregnancy…was in the Constitution all along.”
An amendment either way – if well-written – would resolve the ambiguity, and it would no longer be up to a majority vote on the Court. Nor could the Court overturn it.
I agree with all of this.
I meant that in political terms. The right to choice and to control of your own body is pretty well established both legally and culturally, despite the constant attacks. Overcoming it really would require not only federal legislation but an amendment to make that legislation unassailable.
Right, but as I said before, the same could be said for Heller. If the Court decides it wants to interpret the 2nd as “the National Guard is authorized, but guns aren’t an individual right”, it can do that (and essentially had done that in the 20th Century), no amendment needed.
And if we go far enough in the future, I’m sure the Court could find a way to interpret an amendment stating “the right of the people to obtain abortions shall not be infringed” into “go ahead and infringe on abortion rights, no biggie”. As long as Congress won’t impeach and the People won’t revolt, what the Court says goes, no matter what the Constitution actually says.
No, that is not true. They just weasled around making any sort of strong ruling- well until DC forced their hands with ridiculous gun laws.
More or less as they are doing now, refusing certori on most gun law challenges.
That’s debatable. To be honest, the judicial system operates within a system of norms and not necessarily one of law. The judicial system could overturn an amendment simply by misinterpreting it out of existence. I think that it could be argued that Plessy v. Ferguson essentially overturned a substantial part of the 14th amendment.
Right, I misspoke. The Supreme Court basically ignored the 2nd Amendment between Miller in 1939 (where they sidestepped the question of whether keeping and bearing arms is an individual right) and Heller in 2008. But lower courts didn’t, and consistently ruled as if there was no individual right, only a “collective right”.
From Wikipedia:
If I read you right, you’re disputing DrCube’s take on how the court interpreted the 2nd Amendment for much of the 20th century, not his take on what they could eventually do. But in any case, I think this part is pretty clearly true:
I think it’s fair to say that with Roe v. Wade or the 2nd Amendment, the three ways they could be effectively undone are:[ol]
[li]Constitutional amendment[/li][li]Supreme Court changes its interpretation of the relevant part of the Consitution[/li][li]Creeping gradual errosion of abortion rights or gun rights are allowed to stand by the Courts, without officially overturning past rulings[/li][/ol]
Of these, I think that the latter two are more likely, as these require only the acquiescence of the Courts, but not the approval of 2/3rds of both houses of Congress and the approval of 38 states.
None of which answers the OP’s question: Which is this more likely to happen for, abortion or guns? I think both are unlikely (other than an incomplete version of the gradual erosion scenario). As far as which is less unlikely, the Supreme Court is closely enough divided that I think this will depend on whether Trump gets the opportunity to shift the Court further to the Right, such as by replacing Justice Ginsburg. I hesitate to offer odds on that, other than to say they’re far higher than I’d like them to be (although the abortion cases and gun control cases aren’t the ones I’d worry most about in that scenario).
I agree with this. The “right to privacy” that was the underpinning for Roe, Griswold and Lawrence has a strange pedigree to be sure, and although we may agree that married couples using contraceptives or homosexuals being permitted to have sex in the privacy of their homes are so basic today that we do not even question them, the way by which they became embedded in the Constitution by the Supreme Court is curious at best and has no real limiting principle.
Why can I not engage in recreational cocaine use, fix prices as a business owner, conspire to commit a felony, plan a prostitution ring, or do a host of other activities so long as it is done in private? I realize that marital contraceptive use is nearly universally considered “good” and fixing prices is nearly universally considered “bad” but fail to see the distinction between any of these things only in an ill-defined right to privacy.
However since almost nobody is clamoring to outlaw contraception or consensual sodomy, they are largely ignored. But when a hot button issue like abortion is stripped from the power of the people to decide the issue with a very flimsy justification for making it a constitutional rule, it causes hard feelings as if democracy has been stolen, and an increasing politicization of the judiciary.
Roe needs repealed to restore the integrity of the Court, and so that we can get back to picking Justices on their qualifications instead of constantly trying to gauge how they will rule on this one issue.
Well, which is it? Should “the people” *not *get to decide how you personally have sex, but *should *get to decide what else you do with your body? If you want to discuss a topic, you do need to have a consistent position on it.
I think that that is exactly the point. The judicial branch currently doesn’t have a consistent position on it. It’s simply arbitrary. The courts took it upon themselves to legislate one or two issues because…? But they don’t apply the logic they used to legislate consistently. That makes it appear that the courts are capricious and activist and literally ‘against’ one segment of the population. That’s not a good look and not a particularly stabilizing one either. Either a ‘right to privacy’ is a universal right that should be applied consistently or it’s not a right and the legislatures should decide. Something should not become a ‘right’ whenever it advances a particular agenda, but cease to be a right when it doesn’t and I think that’s really what is at the heart of our current political mess.
The judiciary as a whole *has *consistently applied substantive due process, the right to privacy, to both sexual practices *and *abortion. Roe is based on it. The inconsistencies come from the activist religion-driven right and their attempts to impose restrictions on abortion contrary to a now-established principle of law.