It’s the consensus view that if Roe Vs. Wade were to be overturned, abortion rights would then move back to the states. I read it all the time, and law bloggers don’t even discuss it, it’s just assumed. But I wonder. How exactly would it be overturned? Would a majority say, sorry, we got it wrong, those pesky penumbras and eminations are so hard to decipher, a right to privacy doesn’t cover going out and having a medical proceedure? Or more likely, would the court have to find a right of the unborn that is more compelling than the mother’s right to privacy? And if that were the case, would it really go back to the state legislatures, or would abortion then be unconstitutional, and thus beyond the reach of the states?
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#1 by ArchPundit on October 28, 2005 - 1:31 pm
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There are a bunch of issues here.
First, it’s unlikely that Roe would be overturned out right–especially with Rehnquist is gone. Rehnquist, since he was on the court at the time of the original decision, always voted that it was wrong as he and White did in 1973. With him gone, it’s unlikely Roberts would vote to overrule it outright–overturning a 7-2 precedent isn’t considered good stare decis. Instead, what is likely to happen is restricting the applicability of Roe and diluting it with a potential balancing of interests over the current medical framework.
So balance interest of fetus against interest of mother. That sounds crude, but I’m trying to boild it down. There is virtually no chance that a court would ever extend due process to a fetus for many reasons starting with common law so the ability to regulate such a decision would be left to legislatures–not necessarily the state.
A big mistake in much of the argument is over what happens if Roe is effectively superceded (not really overturned, but made pointless)–the ability to regulate abortion then would exist at the state and national level most likely. My take is that the federal government could probably preempt state government regulation in either direction, but that would have to be fought out in the courts if the federal government sought to do such a thing.
The other issue is that I don’t believe the privacy doctrine would be affected by the ruling–instead it would be a decision pitting privacy against fetal interests. So…Griswold would stand as would other privacy decisions unaffected. It’s the most palatable way to do it while still respecting stare decis and while I’m on the other side, I think a relatively reasonable way to move without hurting the institution of the Courts itself.
#2 by Carl Drews on October 28, 2005 - 2:16 pm
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Good post, ArchPundit.
I say the following in fear of successful contradiction, because I’m not a legal expert (I’m a meteorologist).
Here are a couple of additional thoughts. My wife (a paralegal) and I were discussing this a while ago: By what mechanism would Roe vs. Wade get overturned? The Supreme Court can’t just review past cases and overturn them if they’ve changed their minds or their membership. Somebody has to bring a case before them. And it’s unlikely that the fetus will bring the case, as ArchPundit pointed out. So . . .
I think the biological father has to bring the case. If the biological mother wants to abort the baby, and the father doesn’t want her to do so, I think that would be grounds for bringing suit. The father has an interest, and the only way he can prevent the mother from aborting “his” baby is through legal means. If she aborts the baby, she denies his right to fatherhood.
Does that make sense? Anyone else, feel free to jump in here.
Let’s assume we have 9 justices who are all against abortion. The father’s case would probably result in a decision stating that abortion is only permissive upon the consent of BOTH biological parents. (Let’s see, someone also has to come up with a paternity test that can be applied in utero.) That result is probably not what most conservatives want, and certainly not what I want.
The other possibility is that the state (the federal government) would consider itself to be the protector of the unborn child’s interests. That’s the way murder works – you can’t kill someone just because nobody cares about them; the state then considers itself the injured party. So in this case the state would consider itself to be the injured party when babies are aborted. The state brings the case, the Justices decide to prohibit all abortion, and Roe vs. Wade is overturned. Ta-da!
I think it’s unlikely that the State would bring suit as I described.
#3 by Kevin Murphy on October 29, 2005 - 1:55 pm
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It seems to me the court sometimes follows precedent, and sometimes not. A case in point is the recent decision by the Court to declare execution of minors unconstitutional. The court had set a precedent not long ago that such executions were permissible. Then along came my very own Missouri Supreme Court that ignored the Stanford precedent in the Simmons case, and then the US Supreme Court, rather than taking them to task, affirmed, thus ending the very same court’s statement that only the Supreme Court could overrule its own precedent.
I guess what I don’t understand is the assumption that even if the court threw out, overturned, ignored, superceded, supply your own verb Roe vs. Wade, somehow we would return to the status quo ante on abortion, which means back to the states. What would stop a court from ruling that the body of scientific knowledge had advanced to the point where it was clear that a person’s legal rights began at conception – thus nullifying Roe completely. Now that wouldn’t roll back the court’s stretch of privacy to Griswold and on to Roe.
Or it could take an unrelated case involving privacy, and in that decision allow as how this had an impact in Roe, and then wait for cases to be filed that would allow them to essentially throw out Roe.
More likely would be a chipping away, starting with cases involving partial birth abortion, or similar cases that seek to define the exact limit to abortion rights.
But in any of these cases, the action wouldn’t necessarily be at the state level. The problem with simply returning it to the states is that the supreme court discovered a constitutional right where none had been before, and the most likely way to change that isn’t by losing the right, but by finding a new one that is more compelling the old one. And in that case, the states won’t have any input – the court will decide exactly when the new right is more compelling than the old, and it will be the court balancing the rights, not states, since it makes no sense to have constitutional rights vary strength based on state.