Roe v. Wade Hypothetical

[Frodo]

Let's suppose a state legislature with the support of its governor -let's pick Georgia as an example- decides to ban all abortions except to save the would-be mother's life.  The Georgia branch of Planned Parenthood and NARAL takes the state to court, and reaches the Supreme Court after the 11th Circuit Court of Appeal overturns a lower-court judge's ruling invalidating the legislation.

Given that the ruling contradicts other circuit courts of appeal in other regions of the union, the Supreme Court agrees to take up the case.  How do you hope they would rule on it?

[Ebowed]

Leave as is, or preferably strengthen the protections of a woman's right to abortion.

[Frodo]

And also (I see someone has already replied), how do you think the Supreme Court would rule if such a case ever reached it?

[Ebowed]

And better yet (I see someone has already replied) how would you think the Supreme Court would rule if such a case ever reached it?

Well, we have 4 justices who support Roe v Wade, 2 who would return the issue to the states, 2 who would outlaw it at the federal level (the latter two groups are likely to vote with each other, though).  Finally that leaves Kennedy, who would probably vote for Roe v Wade but continue to weaken it by supporting further restrictions.

[Sensei]

Leave as is, or preferably strengthen the protections of a woman's right to abortion.

Scalia, Thomas, Roberts, and Alito would all vote to overturn it

Breyer, Souter, Ginsburg, and Stevens would all vote for Roe being upheld

Kennedy could go either way I think, honestly. Lean uphold.

[SPC]

I would hope that the Court leave the decision to the states. From a Constitutional point of view, abortion isn't mentioned in the Constitution, and the 10th Amendment would leave the issue up to the states.
   A rebuttal could be made that the combination of the 9th Amendment, which bans government from denying the people certain rights, and the 14th Amendment, which applies the Bill of Rights to the state level, that the woman's right to choose would be protected under the Bill of Rights. However, if the state law states that life begins at conception, it could be argued that the fetus's right to life would also be protected under the Constitution, thus invalidating the argument. If that was the case, that the state law states that life begins at conception, than they would either have to allow the states to be in charge of the issue or "legislate from the bench".

[Person Man]

Gee, you just opened a can o' worms, SPC. Perhaps because SCOTUS took a stance on abortion, they will ALWAYS have to take a stance on abortion. If live begins at ciotus or a time before it could be reasonably and reliably interupted from starting, then SCOTUS would have to amend constitutional jurisprudence to either force states to start enforcing their murder laws on abortionists or order federal agents to enforce Article I Sec IV, which guarantees a republican form of government for all American citizens. If life does not begin until quite some time after sex, then abortion bans would be unconstitutional because they either I, are cruel and unusual in their punishment or II, are crimes that can never be proven beyond a reasonable doubt or III, cannot be reasonably enforced without unreasonable searches and seizures or IV they deprive women of their physical persons without adequate compensation.

But just so we are on the same page-

Scalia and Thomas- would amend the constitution to ban abortion

Alito and Roberts- Wants federal neutrality on abortion.

Kenedy- Tends both uphold Roe and uphold regulations that do not pertain to circumstance- Roberts would probably convince him to  concur in part and dissent in part- probably would rewrite jurisdiction to allow for allow bans throughout pregnancy so long as rape, incest,(or unconsented or invalidly consented to sex) self defense (ecotopic pregnancy, credible suicide attempt, diabetes, heart disease) and unforeseen difficulties (Trisomy, Job Loss, Sickness making pregnancy expensive, Permanent Emotional or Physical Maternal  Damage). This would be hard as hell to do, but would pretty much end the abortion debate in this country for a while as our abortion jurisprudence will look like most other anglospheric countries.

Others- will uphold

[AkSaber]

What I would hope for would be option 2. But I wouldn't mind option 3.

[True Federalist (진정한 연방 주의자)]

Roe v. Wade should be overturned.  The central issue in the whole abortion debate is when does a human life begin.  Before that point the state has no business being involved, afterwards the state has every obligation to be involved.  Setting that line is inherently a legislative task, with the judicial task limited to interpreting what the legislature has set.  The Constitution is fairly silent on this issue.  One can infer from the XIVth Amendment that the dividing line between non-human life and human life is no later than birth, since some humans become citizens then.  It would also be not unreasonable for the Court to rule that under its XIVth Amendment powers that Congress could set that line on a national basis.  In the absence of Congressional action, the Xth Amendment would clearly allow the States to set the line in such a case.

[Jake]

Either banning it outright or allowing the legislature the right to legislate on the issue.

[DWPerry]

Over-turning Roe vs Wade wouldn't ban abortion, it would return the issue to the State level.

[MasterJedi]

I'd prefer Option 2, the courts overturn Roe and Congress bans abortion the way it should have been done (left to the legislature to decide it, not the damn courts).

[Speed of Sound]

I dont think they ever would take an abortion case, as that is just a horribly unpopular idea, possibly to the point of consitutional amendment. If they were dumb enough to take the case, it wouldnt get changed, thus simply clogging the docket with uselessness.

[Undisguised Sockpuppet]

Option 2 and giggle manically and watch as the right culture wars alliance falls apart and the left uses the backlash to move america to something resembling sanity.

[Person Man]

Option 2 and giggle manically and watch as the right culture wars alliance falls apart and the left uses the backlash to move america to something resembling sanity.

That wouldn't be a bad idea. But the cost may be too high.

[Brandon H]

Overturn it definitely. Whether to leave it to the states or ban is interesting question. To put a federal ban on all abortions if the issue is a simple challenge to Roe v. Wade would be judicial activism in the same way Roe itself was. If the case was to challenge that unborn children have rights, then that is a different matter.

This also leads to the following situation: if the Supreme Court outlawed abortion, and someone aborted a baby, is this a federal crime or a state crime? If it is a state crime and someone in a strong liberal state aborts a baby, would a judge, jury, and DA uphold the charges and proceed with a trial, or would they drop charges or acquit the defendant under the belief that while an abortion was committed, a crime was not committed? I'm sure this situation was not uncommon in the pre-civil rights error where a white jury would be very unlikely to convict a white person for murdering a black person.

Of course what everyone needs to remember is that Congress, not the courts, make laws. Congress has the power to overturn Roe v. Wade but won't do it. Many Republicans don't want to do so because they would lose one of their strongest campaign tactics.

[Person Man]

....or better yet if a swing state like Michigan or Colorado banned abortion one year when the republicans had more power, would a democratic governor grant amnesty to offenders the next? I mean if the courts declared nuetrality on the abortion issue NO ONE would EVER know what the law would be ANYWHERE*

*Except for the Beehive Kingdon, The South and New England

[Undisguised Sockpuppet]

Option 2 and giggle manically and watch as the right culture wars alliance falls apart and the left uses the backlash to move america to something resembling sanity.

That wouldn't be a bad idea. But the cost may be too high.

Not really. I'm not female and not attracted to the unstable type who'd not be smart enoguh to use birth control/would need to resort to an abortion so zero chance of it affecting me.

[Person Man]

Option 2 and giggle manically and watch as the right culture wars alliance falls apart and the left uses the backlash to move america to something resembling sanity.

That wouldn't be a bad idea. But the cost may be too high.

Not really. I'm not female and not attracted to the unstable type who'd not be smart enoguh to use birth control/would need to resort to an abortion so zero chance of it affecting me.

Ummm....what about other people?

[Undisguised Sockpuppet]

Option 2 and giggle manically and watch as the right culture wars alliance falls apart and the left uses the backlash to move america to something resembling sanity.

That wouldn't be a bad idea. But the cost may be too high.

Not really. I'm not female and not attracted to the unstable type who'd not be smart enoguh to use birth control/would need to resort to an abortion so zero chance of it affecting me.

Ummm....what about other people?

Read my earlier post. I don't care.

[DanielX]

Option 3. Moral issues, such as marriage laws, should not be under the purview of the federal government at all. The Federal government only has power to regulate abortion on government property, military bases, unorganized US territories, and the District of Columbia; and frankly it should let DC set these laws for itself (although DC government seems to be at least as inept as the feds, at least in a reality where the phrase honest government is an oxymoron).

That said, I would like all states and territories to standardize on having legal abortions solely as a medical procedure when the mother's life is in danger.

[Ebowed]

And I think Roberts and maybe even Alito would vote to uphold, along with the 4 "liberals" and Kennedy.

It's too early to tell, but my gut feeling is to disagree.  The four conservatives plus Kennedy already voted in favor of a partial-birth abortion ban which has no health exemption.  (In many ways, the ban signifies a gradual weakening of abortion rights-- very symbollic to conservatives, and that's why they pushed so hard for it.)  Kennedy, however, would still likely vote to uphold Roe, although he may continue to support certain restrictions.  Thomas is certain to vote to overturn, and return the issue to the states.  Scalia is likely to return the issue to the states as well.  Roberts and Alito, however, are cookie cutter conservatives, not federalists, and would probably rule to overturn Roe while declaring a federal right for the unborn.

Bush was pandering to the base with those appointments.  He knew who he was picking and probably picked them carefully.  (Although, Bush is fairly secretly supportive of gay rights, and used to be pro-choice until it was politically inconvenient.  There is speculation that his father was secretly pro-choice as well.  But Roberts and Alito don't seem like they would suddenly shift to the left.  Then again, no one expected Souter to do so.)

[Person Man]

Yeah, but then again, Roberts and Alito were mules for the Reagan dynasty(Reagan, Bush, (Gringrich, but that's not an issue here) Bush) before coming to SCOTUS. Souter was always just either a private lawyer or judge and Stevens came about in the time before reactionaries were that powerful.

[Person Man]

Gee...this website is pretty inline with the general american public. 54ish-46ish (though there are a lot of pro-abortion ban democrats and not that many pro-abortion rights republicans here)...although it would be about 57ish-43ish if you calculated the votes of SPC and other social liberal federalists....but is still about in line with Libertarian Red States (like Colorado or Montana) and Weak Blue States (like Deleware or Michigan).

[Person Man]

If Roe was overturned, I think the country map would look like this:

26+D.C. - legal (with 5 in the grey area)
24- illegal  (With 3 in the grey area)

Light Red (mostly states with conservative reputations that have libertarian tendancies)- Abortion legal when need is established- Abortion is legal, but most be approved by two or three physicians who must show that it was needed; would typically come with the same restrictions as the "Red" group. 

Red (Libertarian and Democratic states)-  Abortion is a matter of personal choice, but discouraged- Legal without question, but subject to typical abortion control measures suchs as mandatory counciling, waiting periods and madatory family involvement, if possible with possible restrictions on certain types of second-term abortions.

Dark Red (the most progressive of states)- Abortion would possibly be state funded and would definately be subject to few, if any legal spped bumps.

Light Blue(some conservative swing states and some conservative states that are libertarian)- Illegal but law can be waived in court if evidence is presented to show that an abortion is needed because of an unforeseen complication that arose after birth.

Blue(republican states and democratic states that have a large fundamentalist community)- Illegal with exception of rape, incest or threat to mother's life or possibly if the fetus will not be able to survive much after birth. Would probably be treated as a drug offense or a involuntary manslaughter offense and would be  punished with hard time of the minimal hard time that can be offered to a couple of years. Because there would not be enough exceptions to allow for clinics or ever hospitals to sustain a legal abortion practice, abortions would be done at police stations and clinics inside of the court houses under the supervision and approval of the Sheriff and the DA.

Dark Blue(the most reactionary of states)- Thorughly Illegal. Abortion could be considered a crime no matter what, or have only a "double effect" clause or even just a clause that permits abortion if it is the only way to save maternal life and the fetus is dying anyway, or there might be a rape clause, but not for incest. Abortion would be treated as manslaughter, or even capital murder, if that state kills certain convicts.