Trump nominates Amy Coney Barrett (user search)
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  Trump nominates Amy Coney Barrett (search mode)
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Author Topic: Trump nominates Amy Coney Barrett  (Read 2162 times)
Person Man
Angry_Weasel
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« on: September 26, 2020, 10:14:58 AM »

Can't democrats just legislate abortion through congress.

They can pass legislation, but the Supreme Court has ability to strike down a Congressional act (or even state law) as unconstitutional via judicial review (though it's relatively rare for obvious reasons -- the whole equal branches thingy *cough*).  

Per uscourts.gov:  

Quote
The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803).

In this case, the Court had to decide whether an Act of Congress or the Constitution was the supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). A suit was brought under this Act, but the Supreme Court noted that the Constitution did not permit the Court to have original jurisdiction in this matter. Since Article VI of the Constitution establishes the Constitution as the Supreme Law of the Land, the Court held that an Act of Congress that is contrary to the Constitution could not stand. In subsequent cases, the Court also established its authority to strike down state laws found to be in violation of the Constitution.

Before the passage of the Fourteenth Amendment (1869), the provisions of the Bill of Rights were only applicable to the federal government. After the Amendment's passage, the Supreme Court began ruling that most of its provisions were applicable to the states as well. Therefore, the Court has the final say over when a right is protected by the Constitution or when a Constitutional right is violated.

Source:  https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about

(Legal and Constitutional buffs, please feel free to correct me if my expert-memory-recall and expert-Googling is wrong).  


But that would mean declaring some Right to be Born or to partially invalidate the Federal Preemptive clause. My guess is at the very least it would legalize abortion on places where state authorities have no jurisdiction, like reservations unless scotus says there is a right to be born. The only way you could enforce that without congress would be to allow civil rights suits against people getting and receiving abortions on behalf of the fetus by the abortive father or the grandparents.
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