Can Roe v Wade be overturned?

[Jimmy Higgins]

In general, one can easily say "Yes!" that Roe v Wade can be overturned. It could be banned. But it could also be shuffled aside and handed back to the states. But generally, this is looking at the problem inside a bubble.

Roe v Wade provided women the federal right to have an abortion. I don't think it is quite so simple to remove that right. I mean, SCOTUS has done some impressive bending efforts to ignore precedence or get an outcome they politically wanted. But when it comes to abortion, what is the basis for either saying:
1) the fetus has rights
or
2) the federal government has no say in the matter
or
3) ???

I would think promoting the concept that the fetus has rights would be going down an unblazed trail. It'd also require abortion to become illegal in the US. To say the federal government has no say in the matter... after ruling... and affirming that there is a federal interest seems even harder.

Griswold v Connecticut is a sort of iron sheet protecting, originally, wedded adults from government intrusion, based on the right to privacy. Wedded adults needed this because obviously (or maybe it isn't so obvious for some?), raising a child has a somewhat irreversible affect on a relationship. I refer to it as the most wonderful mistake you can ever make. Griswold allowed wedded couples the right to be able to handle procreation based on their choices. The rights here expanded beyond the bedroom of just married heterosexual couples in subsequent cases.

Roe v Wade builds on Griswold and extends it to the womb of the woman (of which most agree if it were the womb of a man... we wouldn't be having this conversation). Griswold was in part based on right to privacy, and the right to one's own body would seem the penultimate sense of privacy.

So if SCOTUS tries to punt to the states, the question becomes why? Why is the affirmed federal protection no longer a federal protection?

One answer is the fetus has rights. But if a fetus has rights, specifically, a right to live, then abortion can't be 'up to the states', it'd need to be illegal. Oh wait... SCOTUS can't do that, can they? After all, there is still "The Birth Control Pill" which is argued by some Talibamans that it is a drug that induces abortion, although very very early. So if Fetuses have the right to live, does that mean that birth control is no longer legal? Or is it only legal to 2 months, as per the limitations being put into the Alabama and Missouri laws.

Then the other is federal oversight on medical procedures isn't valid, and states can regulate it. This would be bothersome, because if Roe v Wade can go to the states based on a ham handed (but well worded) decision, why not Griswold? If the privacy of a two person party is held as liberty regarding having a child, how in the world can it not be for the single person that would actually have the child? And let's not make the mistake of thinking that Griswold isn't the actual target, fetuses be damned. After all, inter-racial marriages, there was quite a bit of bickering and a SCOTUS decision there. Gay marriage (not many abortions at all), yet fought against tooth and nail, heck, it was still criminalized in states in the 21st century! Teaching sex education in school? Fought tooth and nail. Yeah, what does it all have in common, sex.

So in general, the only way to deal with Roe v Wade would be to 1) ban it by giving fetuses the right to live which creates a bizarre issue of a fetus past 8 weeks has the right to live or 2) ham handed hand off to the states like a loose piece of yarn being specifically left hanging out to be pulled on to ban contraception.

 

[Elixir]

It's ALL on the table now.
SCOTUS overturned a 40-year precedent on Monday, giving States immunity from suits by private parties in other States. The case was likely brought to help alt-whites soften public reaction to the blithe overruling of precedents like, say, RvW.

Now that the Republican Congress has been officially subjugated by Der Trumputin coalition, they have little choice but to remain all-in on scrapping our democratic government and making Trump a legally recognized autocrat. It's a ballsy way to go, and maybe really stupid. If they can pull it off, they can continue to pillage the planet and its people for a while.
If 2020 doesn't go so well however, they're in deep doo. The Dem version of Turtle McConnell could change all the rules regarding the appointment of SCOTUS Justices, appoint two more seats to the court, put a lot of people in jail and even impeach every lifetime appointment Trump ever made, citing possible treasonous intent to the appointment.
Trump is talking about other people committing treason, so we know that he has committed treason, or at least believes that he has. And he believes it might be proven if facts become known. It's a fight to the death in his world.

 

[dismal]

In general, one can easily say "Yes!" that Roe v Wade can be overturned. It could be banned. But it could also be shuffled aside and handed back to the states. But generally, this is looking at the problem inside a bubble.

Roe v Wade provided women the federal right to have an abortion. I don't think it is quite so simple to remove that right. I mean, SCOTUS has done some impressive bending efforts to ignore precedence or get an outcome they politically wanted. But when it comes to abortion, what is the basis for either saying:
1) the fetus has rights
or
2) the federal government has no say in the matter
or
3) ???

I would think promoting the concept that the fetus has rights would be going down an unblazed trail. It'd also require abortion to become illegal in the US. To say the federal government has no say in the matter... after ruling... and affirming that there is a federal interest seems even harder.

Griswold v Connecticut is a sort of iron sheet protecting, originally, wedded adults from government intrusion, based on the right to privacy. Wedded adults needed this because obviously (or maybe it isn't so obvious for some?), raising a child has a somewhat irreversible affect on a relationship. I refer to it as the most wonderful mistake you can ever make. Griswold allowed wedded couples the right to be able to handle procreation based on their choices. The rights here expanded beyond the bedroom of just married heterosexual couples in subsequent cases.

Roe v Wade builds on Griswold and extends it to the womb of the woman (of which most agree if it were the womb of a man... we wouldn't be having this conversation). Griswold was in part based on right to privacy, and the right to one's own body would seem the penultimate sense of privacy.

So if SCOTUS tries to punt to the states, the question becomes why? Why is the affirmed federal protection no longer a federal protection?

One answer is the fetus has rights. But if a fetus has rights, specifically, a right to live, then abortion can't be 'up to the states', it'd need to be illegal. Oh wait... SCOTUS can't do that, can they? After all, there is still "The Birth Control Pill" which is argued by some Talibamans that it is a drug that induces abortion, although very very early. So if Fetuses have the right to live, does that mean that birth control is no longer legal? Or is it only legal to 2 months, as per the limitations being put into the Alabama and Missouri laws.

Then the other is federal oversight on medical procedures isn't valid, and states can regulate it. This would be bothersome, because if Roe v Wade can go to the states based on a ham handed (but well worded) decision, why not Griswold? If the privacy of a two person party is held as liberty regarding having a child, how in the world can it not be for the single person that would actually have the child? And let's not make the mistake of thinking that Griswold isn't the actual target, fetuses be damned. After all, inter-racial marriages, there was quite a bit of bickering and a SCOTUS decision there. Gay marriage (not many abortions at all), yet fought against tooth and nail, heck, it was still criminalized in states in the 21st century! Teaching sex education in school? Fought tooth and nail. Yeah, what does it all have in common, sex.

So in general, the only way to deal with Roe v Wade would be to 1) ban it by giving fetuses the right to live which creates a bizarre issue of a fetus past 8 weeks has the right to live or 2) ham handed hand off to the states like a loose piece of yarn being specifically left hanging out to be pulled on to ban contraception.

What a bizarre word jumble. The USSC can overturn any prior case.

 

[Elixir]

What a bizarre word jumble. The USSC can overturn any prior case.

Exactly as I was saying, and right on cue - here comes dismal to put the "mal" back in "normalize".
Yeah, the conservos want everyone to think it happens every day, nothing to see here.
THIS is what has actually happened over the centuries. Not every day or even every decade, especially not 14th Amendment issues. But soon, everyone will be thinking nothing of it... just another weekly trivial erosion of rights of the poor (if you're rich you can go out of State, or out of the Country to get your knocked up mistress scraped and hushed up).

 

[Angra Mainyu]

But when it comes to abortion, what is the basis for either saying:
1) the fetus has rights
or
2) the federal government has no say in the matter
or
3) ???

Who knows?
They can come up with something. I don't know whether they have five votes (Roberts? Kavanaugh?), though the chances increase a lot if Trump is reelected and (probably) gets to replace another liberal.

But for example, how about:

3. The State has a legitimate interest in protecting the life of the fetus, as Held in Roe v. Wade and in Planned Parenthood v. Casey.

https://caselaw.findlaw.com/us-supreme-court/505/833.html

It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

4. Previous rulings (in particular, Roe v. Wade and P.P. v. Casey) erred in linking the strength of the interests with viability. In fact, given sufficiently advanced technology, viability might even be obtained after conception.

5. In fact, the US Constitution does not determine the strength of the state interest in protecting the life of human organisms before birth. In particular, it does not adhere to any particular theory of personhood, or the rights of human organisms before birth. States can if they so choose grant to embryos or fetuses some or all of the legal protections of personhood, or otherwise protect them. They can also choose not to do so. Also, whether there is an implicit right to privacy in the US Constitution is not a matter we should address again here, because even if there is in other situations not involving two (or more) human organisms, it does not impose a limitation to the definition of personhood a state might choose to adhere to, or generally the protections granted to human organisms before birth.

One answer is the fetus has rights. But if a fetus has rights, specifically, a right to live, then abortion can't be 'up to the states', it'd need to be illegal. Oh wait... SCOTUS can't do that, can they? After all, there is still "The Birth Control Pill" which is argued by some Talibamans that it is a drug that induces abortion, although very very early. So if Fetuses have the right to live, does that mean that birth control is no longer legal? Or is it only legal to 2 months, as per the limitations being put into the Alabama and Missouri laws.

Purely for example, how about:

The US Constitution does not grant fetuses or embryos any rights, nor does it deny them. It is open to the states to adhere to (perhaps, "reasonable", assessed in some manner that leaves plenty of leeway to the states) theories of personhood, or otherwise to protect the life of human organisms before birth.

The above suggestion avoids the problems you raised. Now, I'm not a Constitutional expert, so maybe there are problems that make the previous suggestion not viable. But that was merely an example. There are plenty of arguments put forth by different scholars to overturn Roe v. Wade, so justices have plenty of options to choose from, in addition to things they can come up with on their own.

But who knows? Whether they'll overturn it is an open question, and I would not be willing to say it's likely or unlikely - now, if Trump gets to replace one of the remaining liberals, then it's likely.

 

[dismal]

What a bizarre word jumble. The USSC can overturn any prior case.

Exactly as I was saying, and right on cue - here comes dismal to put the "mal" back in "normalize".
Yeah, the conservos want everyone to think it happens every day, nothing to see here.
THIS is what has actually happened over the centuries. Not every day or even every decade, especially not 14th Amendment issues. But soon, everyone will be thinking nothing of it... just another weekly trivial erosion of rights of the poor (if you're rich you can go out of State, or out of the Country to get your knocked up mistress scraped and hushed up).

I spoke a simple truth. If you have a problem with what I said your problem is with reality.

 

[SLD]

What you’re ignoring is that the court doesn’t want to wade into this battle because it will be bad for the court. The justices know this. They can avoid this battle by simply refusing to take it up. Right now, the lower courts are bound by Roe even if they don’t like it. So they will strike these laws down as clearly violating Roe. It takes four votes to grant certiorari and at least Roberts and Kavanaugh want nothing to do with this culture war. I’m suspecting Gorsuch too. They might uphold some of the lesser restrictions on abortion, but they’re not likely to take a direct challenge to Roe.

SLD

 

[Tom Sawyer]

It's probably simple enough to overturn it. The Supreme Court rules that it's not a constitutional right and States can do whatever they want on the matter, so States start to do whatever they want. That's why the States are making laws saying that they can do whatever they want on the matter just after Trump appointed a couple more conservative judges to the Court.

So … good job, Bernie fans? You really showed those elitist pricks at the DNC who's in charge!

 

[Angra Mainyu]

What you’re ignoring is that the court doesn’t want to wade into this battle because it will be bad for the court. The justices know this. They can avoid this battle by simply refusing to take it up. Right now, the lower courts are bound by Roe even if they don’t like it. So they will strike these laws down as clearly violating Roe. It takes four votes to grant certiorari and at least Roberts and Kavanaugh want nothing to do with this culture war. I’m suspecting Gorsuch too. They might uphold some of the lesser restrictions on abortion, but they’re not likely to take a direct challenge to Roe.

SLD

I think Roberts wants to avoid it. Thomas surely wants to overturn Roe v. Wade and other rulings. I suspect probably so do Gorsuch and Alito. I would not guess what Kavanaugh wants to do. But we will see. In any event, I think the court will probably take at least some of the cases. And if it does not yet, it probably will in a few years if Trump gets to replace a liberal.

But no point in arguing the point: we have different views, but we can wait and see what they actually do. It shouldn't take too long.

 

[southernhybrid]

Assuming the justices are smart, which is a big assumption, they will decline to revisit Roe v. Wade. Overturning Roe v. Wade won't make abortion go away. It will just make it unsafe, just as it was when I was young. Just as it was during the early days of the 20th Century, when women lined up for cheap abortions performed by non medical people. Sure, one could say that we now have better methods of birth control, but some of these same whack job fundamentalists believe that OCPs and IUDs are another type of abortion, and they want those things banned as well. And, not everyone has easy access to effective types of birth control, as a lot of money has been cut from state and federal budgets for public health services. I guess we will see how this goes. I do have hope that Roberts will be the swing vote if this actually goes before the court.

The idiotic law passed in Georgia doesn't even permit a woman to go to another state for an abortion. She can be sentenced up to ten years, if she does. Of course, that can't be enforced right now. I don't even know how that particular part of the law could ever be enforced. How can someone be punished for doing something legal in one state, but not the state where they reside? That's insane! But, then again, our Georgia Republican legislators aren't the brightest bulbs in the box.

 

[ideologyhunter]

Gotta be impressed by the long-range strategies these Republicans bring off. They've largely achieved their dream of a SCCOTUS (need I say what the extra C is for? There's nothing like seating a group of justices who have been indoctrinated since toddlerhood that their church stands for pro-life and that God condemns abortion.)

 

[Angra Mainyu]

Assuming the justices are smart, which is a big assumption, they will decline to revisit Roe v. Wade. Overturning Roe v. Wade won't make abortion go away.

Justices are smart, and they realize that of course. But when they consider whether to overturn Roe v. Wade, they're not pondering whether it will make abortion go away. That's not how this is approached. If they overturn it, it will be because some of them believe that that ruling (and others that followed it) is a mistaken interpretation of the Constitution, and the matter is up to the states. As an additional (and strong) motivation, some of them probably believe that abortion is morally abhorrent, and they rather see the perpetrators punished, and access severely limited.

 

[Harry Bosch]

Gotta be impressed by the long-range strategies these Republicans bring off. They've largely achieved their dream of a SCCOTUS (need I say what the extra C is for? There's nothing like seating a group of justices who have been indoctrinated since toddlerhood that their church stands for pro-life and that God condemns abortion.)

Agreed. I've always felt that the reason why the right is so united and motivated to make their vote count vs the left is that they have their eye on the supreme court. They are the minority. But they've figured out how to enforce their way of life even though they are in the minority. I've always been amazed that a majority of white women voted for Trump over HRC! There's a very good chance that Trump will win in 2020 also. RBG can't last forever. If Trump replaces, RBG, SC will be controlled by right wing for 50 years. But maybe that will wake the left up?

 

[SLD]

Assuming the justices are smart, which is a big assumption, they will decline to revisit Roe v. Wade. Overturning Roe v. Wade won't make abortion go away. It will just make it unsafe, just as it was when I was young. Just as it was during the early days of the 20th Century, when women lined up for cheap abortions performed by non medical people. Sure, one could say that we now have better methods of birth control, but some of these same whack job fundamentalists believe that OCPs and IUDs are another type of abortion, and they want those things banned as well. And, not everyone has easy access to effective types of birth control, as a lot of money has been cut from state and federal budgets for public health services. I guess we will see how this goes. I do have hope that Roberts will be the swing vote if this actually goes before the court.

The idiotic law passed in Georgia doesn't even permit a woman to go to another state for an abortion. She can be sentenced up to ten years, if she does. Of course, that can't be enforced right now. I don't even know how that particular part of the law could ever be enforced. How can someone be punished for doing something legal in one state, but not the state where they reside? That's insane! But, then again, our Georgia Republican legislators aren't the brightest bulbs in the box.

It’s not that they’re being logical about the issue of abortion. What Roberts and possibly other conservative justices realize is that whatever the final ruling is, the court itself will lose. It will lose the respect and support of the other side. Their smart play is just not to revisit the issue. Don’t grant certiorari. You don’t have to violate your own conscious. Just don’t vote on it. My fear is that Roberts and other justices will see that doing so would be the same as taking the case and upholding Roe. So then they’d see they have nothing to lose. Then Roe would indeed fall. I don’t see Roberts or Kavanaugh upholding Roe.

The other part of the calculus is whether they fear the consequences to the country of overturning Roe. Overturning Roe will start a cultural war that could tear apart the fabric of society. It’s just too much controversy. Even if not it could fire up the liberal base to vote and that could jeopardize the long term make up of the court. Thomas could retire or die and be replaced by a liberal.

 

[Loren Pechtel]

They have no proper reason to overturn it. That doesn't mean they won't. The conservatives no longer care about anything other than their agenda.

 

[repoman]

https://news.yahoo.com/corporate-america-abortion-just-too-hot-handle-012222697.html

Corporate America is not touching abortion in the way they have done for the whole LGBT spectrum of issues and immigration and so on. Even if these laws are fully enforced they won't say anything except for tiny niche companies. There will be no blue chip endorsed boycott of these states.

Not that I agree with excessive corporate "wokeness", but they will shut their mouths with this.

That says a lot right there.

I hate this issue with a passion, it leads to no good things. I am hyper pro-choice myself.

On the other hand, I got this from the Daily Caller, which I don't like so much, but this would not be covered by Vox, I bet.

https://dailycaller.com/2019/02/07/hayek-microsoft-abortion/

The number one recipient of Microsoft’s generous contributions in 2018 was Dr. Kim Schrier. The company spent $137,597 to get this pro-choice candidate elected to congress. On her website she states, “I will oppose any effort that limits a women’s right to choose abortion or make any reproductive health decision.” Wouldn’t the elimination of babies based on genetic diseases undermine the marketing message of “when everybody plays we all win”?

Another recipient of Microsoft’s generous contributions was Sen. Pat Murray. This past week, Sen. Pat Murray who just this week derailed Senate Bill 130, the Born-Alive Abortion Survivors Protection Act. The intent of the bill is to “exercise the proper degree of care in the case of a child who survives an abortion or attempted abortion.” Again, justification of abortion has been made based on the mental or physical health of the mother, or if the unborn child has genetic or medical conditions.

Hell yeah, abortion to prevent the birth of crippled people is a very high virtue.

 

[Elixir]

What a bizarre word jumble. The USSC can overturn any prior case.

Exactly as I was saying, and right on cue - here comes dismal to put the "mal" back in "normalize".
Yeah, the conservos want everyone to think it happens every day, nothing to see here.
THIS is what has actually happened over the centuries. Not every day or even every decade, especially not 14th Amendment issues. But soon, everyone will be thinking nothing of it... just another weekly trivial erosion of rights of the poor (if you're rich you can go out of State, or out of the Country to get your knocked up mistress scraped and hushed up).

I spoke a simple truth. If you have a problem with what I said your problem is with reality.

I notice that you failed to address my point. It is easy to speak "the truth" in an effort to normalize heinous behavior. The FACTS I pointed out, illustrate the dishonesty of your convenient "truth". If you have a problem with that, maybe you should stop. It is like advocating for coat-hanger abortions by "telling the truth" that millions of women have done it.

 

[dismal]

I spoke a simple truth. If you have a problem with what I said your problem is with reality.

I notice that you failed to address my point. It is easy to speak "the truth" in an effort to normalize heinous behavior. The FACTS I pointed out, illustrate the dishonesty of your convenient "truth". If you have a problem with that, maybe you should stop. It is like advocating for coat-hanger abortions by "telling the truth" that millions of women have done it.

The question was can Roe v. Wade be overturned. The answer is: yes. If you want a more elaborate answer, the answer is yes because any USSC can overturn any prior decision of a USSC. This is not a partisan answer, as to my knowledge there is no “side” that disagrees with it. There is no other way meaningful way to answer this question. If you want to drag up emotional irrelevancies, feel free, but don’t pretend you are responding to the question that was asked.

 

[Elixir]

I spoke a simple truth. If you have a problem with what I said your problem is with reality.

I notice that you failed to address my point. It is easy to speak "the truth" in an effort to normalize heinous behavior. The FACTS I pointed out, illustrate the dishonesty of your convenient "truth". If you have a problem with that, maybe you should stop. It is like advocating for coat-hanger abortions by "telling the truth" that millions of women have done it.

The question was can Roe v. Wade be overturned. The answer is: yes.

Duh. The answer to "is it going to rain fish?" is also yes*, and is equally useless. A more meaningful way to answer would be to outline conditions contributing to increasing or decreasing the likelihood of the event (as I did). Simply stating "yes" in the hope that people will be un-surprised and accepting of fish falling out of the sky, is dishonest.

* I have seen it rain fish - it has happened and yes, it will happen again

 

[Jason Harvestdancer]

Roe v Wade provided women the federal right to have an abortion. I don't think it is quite so simple to remove that right. I mean, SCOTUS has done some impressive bending efforts to ignore precedence or get an outcome they politically wanted. But when it comes to abortion, what is the basis for either saying:
1) the fetus has rights
or
2) the federal government has no say in the matter
or
3) ???

There are two aspects to the RvW ruling. The first is pro-choice, the second is federal level decision. IF RVW is overturned, which is still an "if", then there are two ways it can go.

One way it can go is to keep it federal but reverse pro choice.
One way it can go is to get rid of it being federal and send it to the states.

Those are the two possible outcomes if it is overturned, which of the two aspects of RvW are overturned.