Re: Another Legal Take
OK, so let's say RvW is overturned in the future. Several states have laws on the books outlawing abortion and those laws were never removed, but due to RvW, they have been unenforcable. When the Supreme Courts says those laws are just fine, and have always been fine (since they are saying they erred previously), can doctors who have been performing abortions in those states be immediately arrested?
It depends on how the court frames its opinion.
To give an example: when the court ruled that executions, as practiced at the time, were "cruel and unusual punishment," the decision effectively negated all of the state laws regarding capital punishment. Later, however, the court ruled that, under certain conditions, capital punishment could be consistent with the eighth amendment. Did that make all those old laws effective again? No, because those laws had to be rewritten to conform to the new ruling.
So a lot depends on what the court would say about what would be an acceptable abortion regulation in any decision overruling Roe
, and I can't imagine any opinion leaving this particular point unresolved. Any decision overruling Roe
, therefore, will instruct the states on how to rewrite their laws to conform to the new abortion standards. As a result, I doubt very much if a doctor could be arrested for performing an abortion the day after Roe