This in theory should be GQ… but I feel its more appropiate to the GD crowd to answer.
Most US dopers seem very confident that Bush can’t overturn Roe vs Wade or make abortion illegal. They see it as impossible. Even being well informed on US politics and laws IMO… and knowing its an uphill battle for Bush. To this foreigner it seems that the risk of Bush actually managing to change american abortion laws is clear and not at all minimal. He has put a lot of his credibility (and his soul?) in defending “moral values”. The last moderate has just left the Bush govt. too.
Even if one is skeptic of it… I think that Bush is clearly the best chance ever for conservatives to change the Status Quo on abortion. If I were a drooling pro-lifer I would bet all my money and hopes on Bush.
Naturally politically if abortion does become illegal… more non-conservatives would in fact VOTE AGAINST the GOP. That as soon as abortion became less of an issue to the religious (since they don’t “abort” much) that it would hurt the GOP when women who didn’t care about politics would suddenly have to fight to get their rights back once more. There might be an interest in not overturning Roe vs Wade… but only to be seen as attempting to do so. I know many view Bush’s religion as a political gimmick (I think its only partially so)… but lets assume that **Bush isn’t roleplaying ** the High Priest and he does want to illegalize abortion.
So why is it “impossible” for Bush to change things ? If he spends his “political capital” couldn’t he ? (of course he would have to be heavy handed about it) Who would openly oppose him ?
First of all, to simply make it illegal would go contrary to our Supreme Court’s famous Roe vs Wade decision, which rules that laws making abortion are illegal because they are an unconstitutional invasion of the right to privacy (which is kind of a stretch IMHO). Remember, in the USA, the constitution trumps all, and the supreme court has the final say on what is constitutional, so he would have to have the constitution amended (which is, by design, not an easy task)… He simply does not have that kind of support in congress. He could pack the supreme court with judges hostile to Roe vs Wade, and have the new, ‘improved’ Supreme Court overturn that decision, which would then open the door for state laws to make abortion illegal. That is the main thrust of the anti-abortion movement right now, to make it possible for states to enact anti-abortion laws, by overturning the court decision that says any such laws are unconstitutional. I myself am not so sure that it is not possible to have RvW overturned.
By “last moderate”, I assume you mean Powell. Let me assure you, the Sec of State has nothing to do with abortion. As was already posted, women have a constitutional right to an abortion per Roe v Wade. You can’t be very well informed of US law if you think the president can override the constitution, which is the supreme law of the land, the final authority beyond which there is no appeal. Or that he can pass a law-- only Congress can do that. He may try to get some legislation passed to put some limits on abortion, but that’s it. He can try to pack the court with anti-R v W judges and have that ruling overturned, but that would just send it to the states to decide.
Why don’t you explain to us the process by which you envision this happening.
Theoretically, couldn’t Bush pack the Supreme Court with people who believe that abortion is a violation of the constitutional rights of an embryo or fetus? In that case, someone could file suit on behalf of the unborn and bring it to the Supreme Court, who would rule that abortion is unconstitutional, which would make it illegal in all fifty states, right?
I’m not saying it’s likely, but who knows how many Justices Bush will get to appoint during his second term? Also, I’m not familiar with the details of the opinions of the incumbent justices who are anti-abortion, like Scalia and Thomas, so would anyone care to speculate as to how they might react to the idea of recognizing embryos and/or fetuses as full citizens with the same Constitutional rights as a child?
As others have noted the current obstacle to prohibiting abortions is the USSC’s Roe v Wade decision. To directly overcome this would require either a Constitutional Amendment or the Supreme Court to reverse its earlier decision.
It’s hard to say which is less likely. While the President might decide he’s faced his last election and can afford to push for a pro-life amendment, he’d probably find Congress has no interest is confronting the issue. A serious amendment initiative would tear apart the Republican party; at the moment there are large factions within the party on both sides of the debate that are able to co-exist only because the issue is theoretical.
As for the Supreme Court, it already has a “Republican” majority. Any new Bush appointments are only going to reinforce an existing situation. The Supreme Court has always been extremely reluctant to overturn past decisions, even when the current court might disagree with them.
The third path is the likely one. Abortions will remain legal in the broad sense but a number of laws will be passed and court decisions made which will restrict abortions in the real world.
If the person who sues on behalf of the fetus can prove that the fetus should have the right to a judicial advocate (guardian ad litem?) and that they are the person who should be that advocate in order to get standing before the court. Then, they have to follow the proper procedure in order to get the court to grant them certiorary.
Seems to me it wouldn’t be just a matter of someone saying ‘I’m suing on behalf of that fetus.’
The other thing you have to remember is that a lot of the abortion debate in the United States is just political theater. Politicians can talk about how much they are against abortion, or scream about how our right to choice is hanging by a thread, but it is all just talk.
In most countries where abortion is legal it is legal by law. That is, elected officials, responsible to the people, passed laws making abortion legal under certain broad circumstances. But here it has been ruled that laws restricting abortion violate the right to privacy, which means that all the legislators who make noises about abortion are just making noises, ultimately meaningless.
If Roe v. Wade were overturned, suddenly a politician’s position on abortion becomes consequential. Right now I have no problem voting for a Republican candidate without regard to their position on abortion no matter how extreme, I simply don’t care what they think, since their opinion on abortion is irrelevant. However, if Roe v Wade were overturned, I would have to be concerned about their position on abortion, and what sort of regulation of abortion they propose.
And note that in the United States, matters of this sort will likely be handled by the individual state legislatures, not the US congress. And even if laws against abortion are passed in some states, it is an open question about what sort of legal penalties people who perform abortions, or procure abortions, or undergo abortions should face. And even if there are formal laws against abortion, perhaps even draconian ones, those laws still have to be enforced by local law enforcement, prosecuted by local prosecutors, and the accused will have to be convicted of the crime by a jury of their peers. And there will be neighboring states where abortion won’t be a crime.
Most surveys say that 2/3rds of Americans are pro-life. But surveys also say that 2/3rds of Americans are pro-choice. Meaning, most Americans are against abortion, but they are willing to make exceptions for themselves, or family members, or people they know, or people who are similar to them. Even if laws in southern US states prohibit abortion, I don’t see many cops investigating abortions, or prosecutors indicting people for abortions, or juries convicting people for abortions.
So other than appointing justices to the Supreme Court who will overturn RvW, there isn’t much that the President can do. And of course, all Supreme Court appointments have to be confirmed by the Senate. Yes, the Senate has a Republican majority, however under US Senate rules it takes a 3/5ths vote to stop debate on an issue. Which means that 40 senators can block any action. Right now, 7 out of the 9 supreme court justices have been appointed by Republican presidents. So why don’t we have a 7-2 vote to overturn Roe v Wade?
Theoretically, sure. Except no one of any serious stature, even in the pro-life movement, is suggesting such an approach.
Let us be clear, for those who don’t understand how a federal republic works (or is supposed to work): If the Supreme Court overturns or limits Roe, it will be on the grounds that there is no constitutional right to privacy and that therefore there are no constitutional limits on state laws proscribing or limiting abortion. That is the only type of Supreme Court challenge that is remotely likely to be brought, let alone decided, as to abortion. If this happened, it would have the effect of making abortion legal everywhere . . . except where a state had made it illegal.
Repeat after me: The Supreme Court overturning Roe will not “make abortion illegal.” The judicial theories that would support overturning Roe are precisely based on the premise that the Supreme Court doesn’t have a role to play in making (or un-making) law on abortion. Overturning Roe=returning the democratic process to the states.
Would some states make abortion illegal? Some would. Probably a numerical minority.
Could the fed. government, absent Roe, make abortion illegal? It could, I suppose. A strict constructionist would probably oppose this measure as not founded in any of Congress’s delegated powers. But the debate is moot. There is no way on Earth that this Congress, or any Congress imaginable in this era, would take such action. Remember, even in the Bad Days before Roe, it was the state laws that limited abortion (in some states), not fed. law.
The pro-lifers were talking about a Human Life Amendment years ago, which is another form of federal limitation on abortion (and a vehicle that constructionists would be more comfortable with, I think). It never went anywhere and wouldn’t now.
In summary, there is zero, and I mean zero, chance of abortion being banned on a nationwide basis under Bush. I think there is substantially less than a 50% chance of any significant reversal of Roe, for what it’s worth. We’ve been hearing about how the conservative S.C. was going to scrap it or any number of other precious “constitutional rights” for years, yet the Rehnquist Court has managed to reverse just about none of the judicial-activist legislation-by-judge decisions of the past 40 years. Why the post-Rehnquist Court would be much different, I can’t imagine, given that all but two (I think) of the members of the current Court are Republican-appointed and yet the Court has continued to mint new “rights” at a respectable clip.
If Roewere reversed, there is truly zero chance of anyone bringing and succeeding in an equal protection/due process claim on behalf of a fetus/embryo; first, constructionists are a little more honest in their reading of the Constitution than to attempt such a reach, and second, a constructionist judge would almost certainly find that the Framers never thought an embryo or fetus was a “person.”
Finally . . . for those who see GWB as a raving anti-abortion religious fanatic – I’d suggest you look at the Bush family. Just about every candid statement by his father, mother, wife, and for all I know daughters, indicates they’re all mildly to staunchly pro-choice and socially moderate (squishy, to Republicans). Yes, GWB has a political base that cares deeply about abortion; but he’s a lame duck, and I don’t know that he has to or will spend much more energy than he has to in catering to that base, when he can be burnishing his legacy in other, more “compassionate” ways. If the proposition is that he is motivated by a burning personal passion on abortion – well, I just don’t buy it. Isn’t the knock on him that he doesn’t care or think deeply about anything?
Because so many folks are working under the delusion that GW isn’t a king of course. You however see right through the facade to the fact that GW is actually the supreme ruler and high mugwump of the US and can do anything he wants too by simply shouting ‘MAKE IT SO!!’.
Sorry, couldn’t resist. Besides, the question has been more than adaquately answered and the thread is obviously dieing at this point.
But it would be anti-abortion activists attempting such a reach, not necessarily plain old constructionists. And as far as honesty, I’d tend to think that people are “constructionists” when it suits them, regardless of political allignment.
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and second, a constructionist judge would almost certainly find that the Framers never thought an embryo or fetus was a “person.”
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This is why I asked about the current anti-abortion justices and their theoretical positions on the personhood of an embryo or fetus. I was hoping someone who pays attention to the things Scalia and Thomas say and the opinions they write would be able to make an informed prediction (and back it up with facts) on how they’d rule if such a case were brought before them.
That’s because the President doesn’t introduce Bills in congress. The best he could do is sign such Bills that come across his desk. The risk of Roe v. Wade beng overturned is pretty darn low.
Well if the Supreme “made” Bush president the first time… how hard would it be to take down Roe and Wade… ?
Might be straightforward to you guys… but from the outside the rhetoric does seem to be hitting a pitch where they would try to attack legal abortions any way they could. I’ve seen enough wierd legal acrobacies in my life to beleive that there isn’t anything set in stone when you either have enough judges or lawyers on your side. I wanted to know if this “confidence” was more hubris or if the right to abortion is strongly “entrenched” and impervious.
Naturally if this is so straight forward legally speaking... it just emphasizes the nature of political manipulation of the issue has taken on one side (pro-life) and the apparent lack of interest on the other (pro-choice).
The abortion issue in this country (IMO) is a bread and circus’s issue…i.e. nothing substantial will ever really be done on it because no politician will do more than give lip service to radical change of the status quo. It just gives folks the chance to vent and get all worked up on an issue that really won’t change…so that they ignore other things they shouldn’t be looking at too closely. Politicians LOVE this issue IMO.
You need to start learning to filter out some of the more rabid anti-Bush propaganda…or at least look at it in context with how our system REALLY works.
Which is why many of us don’t like judges creating new law like this. It’s too dependent on the idividual judges, and it could just as easily swing the other way. Better to let the legislature handle these issues, since they are supposed to represent the will of the people.
It’s all fine and good to applaud legal decissions that comply with your own personal beliefs, but there is simply no guarantee that the next decision will line up that way.
If the SC reversed R v W, then the legislature would be free to make the law, as they should have done in the first place.
“Thanks”… but how will the hardcore (better?) pro-lifer view the fact that not even Bush managed to take down Roe vs Wade ? That was my idea. At some point if the answers in this thread are correct… pro-lifers should also disregard it as an election issue. Like we pro-choice Brazilians have given up fighting for having abortions legalized here.
This thread was more information seeking than anti-Bush. Spin it as you will.
Still I had seen arguments before about the “impossibility” of overturning Roe vs Wade… but that was before the “moral values” re-election. Just wanted to know how firm this “impossibility” was… and what future attempts at changing the laws had a real chance and which were just to cater to the conservative base.
If Bush doesn't overturn Roe vs Wade... then no one will... to me (before) it seems Bush had a chance of doing it if he **really** tried.
Not necessarily. Again, it depends on how many Supreme Court justices retire, and how the replacements Bush puts in actually decide once there.
Reagan didn’t overturn Roe v. Wade, either, despite having a majority Republican Seante for the first six years of his presidency and putting 3 justices (Scalia, O’Connor, and Kennedy) on the court. If Rehnquist retires- which seems likely- the best Bush can do is replace him with someone just as conservative.
I wasn’t saying the THREAD was anti-Bush…I was saying the MEME is anti-Bush propaganda (i.e. the idea that Bush is actively seeking to overturn RvW…or that he even COULD if he wanted too).
You however see right through the facade to the fact that GW is actually the supreme ruler and high mugwump of the US and can do anything he wants too by simply shouting ‘MAKE IT SO!!’. 
