Roe v. Wade Hypothetical

[Sewer]

activist judges

tee hee

[Free Palestine]

If anybody could direct me to the part of the Constitution that says Congress has the power to ban or legalize abortion, that would be lovely.  Oh, nevermind, it's probably covered by the Commerce Clause for some reason.

Probably the same clause they use to criminalize other murders, in all likelihood. Then again, you're looking at an issue that activist judges ruled on instead of going through the proper legislative process.

Where is the federal government given the express power of making laws against murder of any kind?

[segwaystyle2012]

If anybody could direct me to the part of the Constitution that says Congress has the power to ban or legalize abortion, that would be lovely.  Oh, nevermind, it's probably covered by the Commerce Clause for some reason.

Probably the same clause they use to criminalize other murders, in all likelihood. Then again, you're looking at an issue that activist judges ruled on instead of going through the proper legislative process.

Where is the federal government given the express power of making laws against murder of any kind?

Probably the commerce clause.

[Free Palestine]

If anybody could direct me to the part of the Constitution that says Congress has the power to ban or legalize abortion, that would be lovely.  Oh, nevermind, it's probably covered by the Commerce Clause for some reason.

Probably the same clause they use to criminalize other murders, in all likelihood. Then again, you're looking at an issue that activist judges ruled on instead of going through the proper legislative process.

Where is the federal government given the express power of making laws against murder of any kind?

Probably the commerce clause.

I hope you were being sarcastic...

[segwaystyle2012]

If anybody could direct me to the part of the Constitution that says Congress has the power to ban or legalize abortion, that would be lovely.  Oh, nevermind, it's probably covered by the Commerce Clause for some reason.

Probably the same clause they use to criminalize other murders, in all likelihood. Then again, you're looking at an issue that activist judges ruled on instead of going through the proper legislative process.

Where is the federal government given the express power of making laws against murder of any kind?

Probably the commerce clause.

I hope you were being sarcastic...

Of course.

[Deldem]

Something in between 1 and 4.

There should be more restrictions on some things (like partial birth), and less on others (such as doing things like forced ultrasounds).

[Frodo]

Since abortion seems to have become a hot topic as of late...

[Supersonic]

Overturn Roe v. Wade, leave it to the states.

[Donerail]

Overturn Roe v. Wade and (instead of blah blah blah trimesters) simply recognize that the Constitution contains a right to privacy and that within that right there is a right to an abortion.

[The world will shine with light in our nightmare]

Option four.

[morgieb]

Four. Voted one though as I thought we were voting on how you think they'd rule, not how you want them to rule.

[Antonio the Sixth]

LOL, I read option 2 as overturn Roe VS Wade and legalize abortion nationally (which would be the best solution, but of course won't happen in the next 50 years).

Is there some way to "un-vote" ? I feel dirty.

[Free Palestine]

Jeebus, I can't believe I voted the way I did.

[Vosem]

Constitutionally speaking, Roe v. Wade is totally bogus and the issue should be left up to the states. Practically speaking, legalized abortion is good public policy and they came up with a good enough excuse back in the 1970s so it doesn't really seem like we're going against the Constitution. I would say uphold, since it's already there.

[Grumpier Than Thou]

Option 3

[Person Man]

What would happen if Roe v. Wade were overturned?

[The world will shine with light in our nightmare]

What would happen if Roe v. Wade were overturned?

Some states, I believe, would have it banned automatically (as certain restrictions were put on their books prior to the Roe v. Wade ruling) whereas others would not, and we'd see a wave of states passing either restrictions or permissions for women to have abortions until someone in Congress eventually musters enough votes to ban it nationally.

I believe that Vermont, surprisingly, actually has some of the toughest anti-abortion laws in the country on its books -- all of which would likely come into effect until they would be quickly repealed by the legislator, in the event that Roe were overturned.

[Person Man]

Do you think there would be enough votes to ban abortion for it to be repealed the following year?

Would most states pass "Sixth Day Laws" or would a lot of states emulate European countries where the decision is largely deffered to medical review boards.


In fact, this is what I think-

Dark Blue- illegal without exception with perhaps life-threatening exceptions.
Blue- Presumed illegal, but still a path to abortion in extreme cases (ranging from avoiding a hysterectomy or other organ loss when the fetus's fate is not certain to forcible rape to perhaps various levels of misdemeanor (incest, prostitution) and felony sodomy (sexual activity with a 16 or 17 year old when over 23)
Grey- Deffered to Medical Review Boards, decided on "case by case" basis, "legal when a ' reasonable need' can be established"*
Red- Presumed legal, but still opportunities by family/community to protect fetus (mandatory bible study(probably would be constitutional to a SCOTUS that would not recognize Roe), waiting periods, pre-natal adoptions, funding restrictions)
Dark Red- No discrimination against abortion

* There will be hospital boards in some counties that will be basically a formality and others that will always say that there is no need for abortion.

Another issue would be is if a pro-life victory (where the legal availability is considerably less than in the average mature nation-state) would cause a slippery slope to the point that Adultery and even benign birth control would become subject to becoming at least a misdemeanor.

[brucejoel99]

leave roe vs. wade in place as is

*Planned Parenthood v. Casey

[Brother Jonathan]

leave roe vs. wade in place as is

*Planned Parenthood v. Casey

For all the talk about Roe v. Wade among pro-choice groups, Planned Parenthood v. Casey really is the more important case when it comes to the issue now. Planned Parenthood v. Casey, though, did see the "essential holding" of Roe v. Wade, so I guess that is where it comes from. Both rulings, though, are pretty much Constitutional nonsense. Even many liberal legal scholars will agree now that Roe is really lacking when it comes to a basis in law (though Planned Parenthood v. Casey is a sightly different story). It takes two large leaps to get to the decision the Court made in Roe v. Wade. First, you have to hold that the 14th Amendment contains a right to privacy. Then, finding that, you have to hold that such a right to privacy (which extends beyond the rights granted by the 4th Amendment) protect a woman's right to an abortion. Both of these findings are pretty shaky Constitutionally. The second one finding can reasonable be inferred from the first if the right to privacy is expansive enough, but I don't see how you can derive such an expansive conception of privacy from the text of the 14th Amendment. Really, I fail to see how the 14th Amendment creates any right to privacy beyond reinforcing the provisions of the 4th Amendment. To say the 14th Amendment creates a right to privacy that in turn extends to a right to abortion is no more legally defensible than saying that the 14th Amendment creates an uninhibited right to contract. In this sense, Roe v. Wade was, like Lochner, wrongly decided by Judges using substantive due process to insert personal policy preferences into law.

So, to the hypothetical, I would say strike down Row v. Wade and by extension Planned Parenthood v. Casey and allow legislatures at various levels to the question of abortion.

[Senator-elect Spark]

Overturn Roe and leave abortion up to the individual states.

[MarkD]

leave roe vs. wade in place as is

*Planned Parenthood v. Casey

For all the talk about Roe v. Wade among pro-choice groups, Planned Parenthood v. Casey really is the more important case when it comes to the issue now. Planned Parenthood v. Casey, though, did see the "essential holding" of Roe v. Wade, so I guess that is where it comes from. Both rulings, though, are pretty much Constitutional nonsense. Even many liberal legal scholars will agree now that Roe is really lacking when it comes to a basis in law (though Planned Parenthood v. Casey is a sightly different story). It takes two large leaps to get to the decision the Court made in Roe v. Wade. First, you have to hold that the 14th Amendment contains a right to privacy. Then, finding that, you have to hold that such a right to privacy (which extends beyond the rights granted by the 4th Amendment) protect a woman's right to an abortion. Both of these findings are pretty shaky Constitutionally. The second one finding can reasonable be inferred from the first if the right to privacy is expansive enough, but I don't see how you can derive such an expansive conception of privacy from the text of the 14th Amendment. Really, I fail to see how the 14th Amendment creates any right to privacy beyond reinforcing the provisions of the 4th Amendment. To say the 14th Amendment creates a right to privacy that in turn extends to a right to abortion is no more legally defensible than saying that the 14th Amendment creates an uninhibited right to contract. In this sense, Roe v. Wade was, like Lochner, wrongly decided by Judges using substantive due process to insert personal policy preferences into law.

So, to the hypothetical, I would say strike down Row v. Wade and by extension Planned Parenthood v. Casey and allow legislatures at various levels to the question of abortion.

It does my heart good to know that there are more and more people who recognize the flimsiness in the doctrine of "substantive due process" and who see the similarity between Roe and Lochner. Don't forget that the first Supreme Court precedent which infused substantive meaning into one of the Due Process Clauses was Dred Scot v. Sanford. The Court invoked the Due Process Clause of the Fifth Amendment as one of the many reasons for saying that the Missouri Compromise was unconstitutional.

Also be aware of the fact that the last clause of Section 1 of the 14th Amendment, the Equal Protection Clause, has been a source for the Justices to also legislate from the bench, and the Court could have just as easily invoked that Clause as the source of the "right to privacy." That was what had happened in Skinner v. Oklahoma, 1942, when the Court spontaneously proclaimed that being able to reproduce is "one of the basic civil rights of man."Somehow, that principle was being inferred from the Equal Protection Clause. And ever since then the Court has often claimed that the Equal Protection Clause requires "strict scrutiny" of laws that abridge "fundamental rights," even when those those rights are not enumerated in the Constitution. Shortly before Roe v. Wade the Court handed down Eisenstadt v. Baird, 1972, which invoked the Equal Protection Clause as the protector of the "right to privacy." The right to marry has been inferred from the Equal Protection Clause in cases such as Zablocki v. Redhail, Turner v. Safley, and more recently and more famously, Obergefell v. Hodges. The right to VOTE has been frequently inferred from the Equal Protection Clause, thus making the 15th, 19th, and 24th Amendments unnecessary and a waste of time and effort to add to the Constitution.

Even if the doctrine of "substantive due process" becomes erased from the legal books, that does not mean that Roe and Casey have to go. The Court could still infer that the right to abortion is protected by the Equal Protection Clause. After all, laws banning abortion "discriminate" against women. That's probably the way Justice Ruth B. Ginsburg thinks about it.

[Beet]

Overturning Roe would absolutely be the worst case scenario. Not only is overturning massively unpopular, but it's an inherent civil rights issue, that should be decided on the national level either way, not by states.

[Orwell]

Smh Overturn PP of SE PA v. Casey and go back to Roe v. Wade

[538Electoral]

I think it's a state matter. If a state wants to ban abortions, It should well be allowed to.