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Woman's Right to Choose and the Constitution

 
 
gollum
 
Reply Sun 8 Jul, 2018 05:00 pm
I basically believe that a woman should have the right to terminate a pregnancy. That said, I don't see that any statements in the Constitution guaranteeing that right.

If Roe v. Wade were overturned, could the Congress enact a law to make abortion legal? Or would abortion be legal without any enabling statute as long as there were no law prohibiting it?
 
rosborne979
 
  2  
Reply Mon 9 Jul, 2018 04:39 am
@gollum,
Expecting Congress to do anything of substance is probably a long shot.
0 Replies
 
oralloy
 
  0  
Reply Mon 9 Jul, 2018 06:13 am
@gollum,
gollum wrote:
If Roe v. Wade were overturned, could the Congress enact a law to make abortion legal?
It's hard to see how they have the jurisdiction to pass such a law.

gollum wrote:
Or would abortion be legal without any enabling statute as long as there were no law prohibiting it?
Yes. However some states would be quick to outlaw it.
gollum
 
  1  
Reply Mon 9 Jul, 2018 12:35 pm
@oralloy,
oralloy-

Thank you.
0 Replies
 
rosborne979
 
  2  
Reply Mon 9 Jul, 2018 01:06 pm
@gollum,
It's my understanding that Congress can create any law they like (if they can get enough votes to pass it), but the Supreme Court can overturn the law if it is determined to be unconstitutional. However, Congress can also modify the constitution (again, if it can get enough states to agree), so Congress could conceivably have the last say.

But realistically, it's very very difficult for congress to do ANYTHING of substance, much less something as massive as amending the constitution. Such a thing would require a huge unified movement of voter support. But that's not likely to happen because corporate media is polarizing the flow of public information, and effectively creating a roadblock of balanced views. Movement between the gigantic polarized voting blocks is handled by small laws buried within boring bills which nobody notices.

(sorry to be the bearer of bad news)
maxdancona
 
  2  
Reply Mon 9 Jul, 2018 02:27 pm
@rosborne979,
The problem is that Congress can't pass laws outside of their enumerated powers. Generally they use the commerce clause to get around that, but it is difficult to see how this trick can be used with abortion.

I suspect Roe v. Wade is overturned in the next few years. I think it will be a mess.
Setanta
 
  1  
Reply Mon 9 Jul, 2018 02:42 pm
Amending the constitution has become almost impossible. Amendments can only be proposed by a vote of two thirds of both houses, and then must be ratified by three-quarters of the states--I'll do the math for you, that would require 38 states to ratify. In recent decades, when amendments were proposed, a time limit for ratification was included (something on which the constitution is mute), and some states have attempted to rescind their ratification. That was how the Equal Rights amendment was torpedoed.

The last amendment to be ratified was the XXVIIth amendment, which reads, in its entirety:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

It was sent to the states in 1789, with no time limit, and was finally ratified in May, 1992. In general, Congress has gotten around it with COLAs--cost of living adjustments. Those have not been challenged in Federal courts, so this activist, reactionary Supreme Court has never ruled on whether or not such Congressional scams are constitutional.

When the most recently ratified amendment took over 202 years for ratification, and no one now is even contemplating amendment, I think it would be an extraordinary occasion which would lead to the successful amendment of the constitution in the future.
0 Replies
 
McGentrix
 
  0  
Reply Mon 9 Jul, 2018 03:14 pm
@maxdancona,
maxdancona wrote:

I suspect Roe v. Wade is overturned in the next few years. I think it will be a mess.


Why do you suspect that? When was the last time any major case law was over turned in the Supreme court?
gollum
 
  1  
Reply Mon 9 Jul, 2018 03:20 pm
@maxdancona,
maxdancona-

Thank you.
0 Replies
 
maxdancona
 
  2  
Reply Mon 9 Jul, 2018 03:36 pm
@McGentrix,
Roe v. Wade has always been on shaky legal ground. Even liberal legal experts say that the reasoning behind the decision was questionable at best.

With the Trump picks, the planets are aligning for it to be overturned.

maxdancona
 
  2  
Reply Mon 9 Jul, 2018 03:49 pm
@McGentrix,
The latest I could find was Lawrence v. Texas in 2003 which overturned the ruling of Bowers v. Hardwick in 1986 banning anal sex between consenting adults.

I didn't spend that much time googling.
0 Replies
 
livinglava
 
  3  
Reply Tue 10 Jul, 2018 08:28 am
Even prospective conservative justices seem to think that Roe v Wade is established law and thus won't be overturned. What is more likely, according to a recent opinion (I forget whose, sorry), is that the definition of personhood may be updated to protect unborn persons. If that route is taken, the abortion-rights response will be the traditional pro-abortion view that a fetus is not independently viable outside the mother's womb, therefore it's not a person. But, by that logic, a young child is also not 'viable' outside the care of a ward, so it should be legal for a ward of a minor to choose to abandon the child without legally transferring custody.

What may happen is that abortion will become something regulated by local circuit courts the way divorces, child support, custody, adoption, etc. are regulated. Women will have to seek approval and then circumstances will be taken into account. Some requests will probably be denied and women will be court-ordered to carry the pregnancy to term. Others may be granted. Roe v Wade was actually a case in which 'Jane Roe' lied about being raped in order to get a legal abortion but was denied because she hadn't filed a police report on the rape. She ended up having the baby, giving it up for adoption, and later becoming pro-life after being saddened to see that her court case had become a much broader foundation for abortion that she was comfortable with.
0 Replies
 
woiyo
 
  1  
Reply Wed 26 Sep, 2018 01:32 pm
@maxdancona,
That is obscured. States can legislate abortion and most have. It is not up to the US Supreme Court to guarantee a right to abortion. This is a tired old argument that only the States can provide for.
0 Replies
 
 

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