Should Roe V. Wade Overturned?

[MarkD]

Yes, and if the SCOTUS doesn't overturn it, I have drafted a proposal for a constitutional amendment that will overturn it.

Roe and Casey claimed that the right to get an abortion is protected by the Due Process Clause of the Fourteenth Amendment. That theory supposes that the DP Clause not only says
"No State shall ... deprive any person of life, liberty, or property without due process of law,"
but the Clause also means
"No State shall ... deprive any person of life, liberty, or property without due law."
Giving the Clause the second meaning (known as "substantive due process") turns the Court into a superlegislature, second-guessing the merits of every law that gets challenged.

Not only should Roe be overturned, but the doctrine of "substantive due process" needs to be buried once and for all at the same time. That is something my proposal will accomplish as well.

[MarkD]

First,

As much as it pains me to say it, yes. Judicial activism isn't ok just because you agree with the outcomes.

Bingo.

You said it almost exactly the same way the late Robert Bork said it.

Constitutional philosophy is a theory of what renders a judge's power to override democratic choice legitimate. It is no answer to say that we like the results, no matter how divorced from the intentions of the lawgivers, for that is to say that we prefer an authoritarian regime with which we agree to a democracy with which we do not. [Bork, The Tempting of America, (1990), page 78.]

I prefer to paraphrase that Bork quote, and say the same thing in a slightly different way. Whatever is your constitutional philosophy, it is your theory of what it is that legitimizes the power of judges to strike down democratically made laws. It makes no sense to say that you like the results, no matter how far divorced they are from the intentions of those who made the pertinent part of the Constitution, for that is to say that you prefer an authoritarian government - an authoritarian oligarchy - with which you agree to a democracy with which you do not.

Second,

It should be replaced with a federal law that protects abortion at all stages and ensures it's funding by federal health services.

Courts making law is literally medieval/somalia tier. I'm surprised more people don't mock the US/anglosphere for it.

Bingo again about the last sentence, but the part I bolded fails to remember one thing: the Constitution is silent about the topic of abortion. Congress cannot pass legislation to address the topic just because it wants to, nor because of public opinion polls indicating that about 55% of the people or so want to ensure abortion remains legal. If the Supreme Court overturns Roe - and you clearly know that it should - then at that point, at that very moment, the Fourteenth Amendment will no longer prohibit anti-abortion laws in the states, and likewise that means Congress will be powerless to ban states from passing anti-abortion laws. A federal law that forces states to legalize abortion will be struck down as a violation of the Tenth Amendment. The issue will be returned to the states, where it should be.

[MarkD]

It should be replaced by federal legislation that provides clear protections for abortion rights in all 50 states.

Where in the Constitution does Congress get the power to pass a federal law that legalizes abortion and prohibits state governments from banning abortion? Does Congress get that power from the Preamble to the Constitution, in particular the last phrase, "to secure the blessings of liberty?" Does Congress get that power from the Commerce Clause? From the power to enforce the Nineteenth Amendment (guaranteeing women the equal right to vote)? Where else in the Constitution might the power to guarantee abortion rights come from?

You might answer that by saying that Congress gets the power to protect abortion rights from Section 5 of the Fourteenth Amendment, which empowers Congress to enforce all provisions in the Fourteenth. If Roe and Casey are NOT overturned, and Congress passes a law to enforce the principles that are currently in Roe and/or Casey, then Congress would not be REPLACING Roe, like you said in your post, Congress would be supplementing Roe. If the Supreme Court does overturn Roe and Casey, then Congress will be left powerless to try to enforce the principles that were in Roe, as I said previously in this thread - Reply #12.

Yes. People shouldn't have an exclusive right to an abortion. It's like saying murder should be legal under this surreptitious practice. The decision was based on flawed reasoning of a right to privacy when it flies in the face of the 5th Amendment, "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws ....". In this case, the Roe decision deprives a person of life, irrespective of legal person-hood.

Overturning Roe would leave the issue to the states to decide the matter. Using their police powers under the 10th amendment, states should penalize doctors for performing this barbarism. It is contrary to the Hippocratic Oath. Any doctor who performs an abortion should lose their license to practice medicine.

The majority of Americans don't support abortion after the first trimester anyway.

In your first paragraph, you're quoting the Fourteenth Amendment (Section 1), not the Fifth Amendment. The Fifth, besides having a Due Process Clause, also has a Grand Jury Clause, a Takings Clause, a Self-Incrimination Clause, and a Double Jeopardy Clause. That's a minor point. To the rest of your argument in the first paragraph: there is nothing in the Constitution that resolves the legal question of whether a fetus is a person and whether fetuses have rights protected by the Constitution. Section 1 of the Fourteenth Amendment begins with a sentence that defines citizenship as persons BORN in the United States. Fetuses are not citizens, but it also happens that they are not non-citizens (aliens) either. Fetuses are simply not persons recognized by the Constitution at all. The Due Process Clause(s) do not prohibit doctors from killing children after birth; statutes do that. The Due Process Clause(s) prohibit government from depriving any person of life without due process of law.

So your second paragraph is a little bit better, Spark, because it recognizes that under the Tenth Amendment, it should be up to states whether to ban abortion. (And you think that all 50 states should ban it. Good luck with that.)

[MarkD]

It should be replaced by federal legislation that provides clear protections for abortion rights in all 50 states.

Where in the Constitution does Congress get the power to pass a federal law that legalizes abortion and prohibits state governments from banning abortion? Does Congress get that power from the Commerce Clause?

Yes.

I wouldn't subscribe to this theory that, because Congress is empowered to regulate interstate commerce, it can force state governments to keep abortion legal. I understand your willingness to see the purchase of abortion service as an (often) interstate commercial transaction (including what you said to me via personal message), but it still seems obvious to me that most abortions that will be performed will be purchased via INTRAstate transactions. More important, the obvious purpose of a federal law that requires abortion to be legal in all 50 states is NOT to actually regulate interstate commercial purchases of abortion services, but the purpose would simply be to overturn a Court ruling such as the upcoming Dobbs decision, if the Court uses that case to overturn Roe.

But given how broadly the Supreme Court has been interpreting the Commerce Clause ever since 1937 (see U.S. v. Darby Lumber Co. and Wickard v. Filburn), I can see how you've got a lot of precedent on your side to back up your argument. (I confess that I'm not very well-versed in Commerce Clause jurisprudence anyway.) And, as I indicated to you via personal message, I am not as outraged at Supreme Court decisions to uphold laws that should be struck down as I am at decisions to strike down laws that should have been upheld. So I would not be very upset if the Court did uphold a federal "Codify Roe" law via Commerce Clause reasoning. (That would be nowhere near as upsetting to me as the dozens upon dozens of times in which the SCOTUS has extended the meaning of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, increasing its own power at the expense of the power of the state governments.)