Alternative way to eliminate the effects of Roe v Wade

[joel]

Many pro-life and pro-choice legal scholars agree that Roe v Wade was a bad/improper decision. When we talk about getting rid of the effects of Roe, I usually only hear of 2 options:

1) appointing new Supreme Court Justices who will rule differently than Roe
2) amending the constitution.

And people usually dismiss the latter, saying it is too difficult/unlikely, so we just need to keep hoping for (1).

I picked up Ron Paul's new book this weekend and have read about half of it so far (It's good; I think everyone ought to read it). Paul is in favor of eliminating the effects of Roe and returning the issue of abortion to the states, and he offers an alternative to the two options above. Article 3, section 2 of the U.S. Constitution grants the Congress power to make Exceptions to what cases the Supreme Court has jurisdiction over.
http://en.wikipedia.org/wiki/Article_Three_of_the_United_States_Constitution
Thus the Congress can pass a law declaring that the Supreme Court has no jurisdiction over cases regarding abortion. In fact, Paul introduced legislation in the House that would do just this (http://www.govtrack.us/congress/billtext.xpd?bill=h110-1094).

Thus the states would have the final say in the matter.

Now this seems like a good intermediary step. What I mean is that we can't stop with just that, if we are to be consistent. We have already added, in the 14th amendment, "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." So it seems to me that ultimately, on principle and in order to be consistent, either the 14th amendment should be repealed, or abortion should not be, ultimately, left up to the states. (My understanding is that the 14th amendment would allow the federal government to step in if a state gives, say, an exception saying that murdering a person of a certain category is not illegal.)

But it still seems to me to be a good intermediate step. Should we be encouraging everyone to write their congressmen to tell them to pass such legislation as Paul has introduced?

[lao tzu]

Thus the Congress can pass a law declaring that the Supreme Court has no jurisdiction over cases regarding abortion.

That is flat out nuts. What are they going to do to adjudicate the issue then, fight it out in the streets with brass knuckles?

[historic salve]

Returning the issue to the states is unacceptable and unconstitutional. If the fetus is really protected under the 14th Amendment, then it's a federal issue. Unless maybe you'd like to argue that Dred Scott v. Sandford was a good ruling.

[joel]

That is flat out nuts. What are they going to do to adjudicate the issue then, fight it out in the streets with brass knuckles?
No, it would mean that no one can appeal to the United States Supreme Court to overturn a ruling made by a state's supreme court. Since this deals with appeals, it means that a court has already adjudicated the issue--no need to fight it out in the streets.

[joel]

Returning the issue to the states is unacceptable and unconstitutional. If the fetus is really protected under the 14th Amendment, then it's a federal issue. Unless maybe you'd like to argue that Dred Scott v. Sandford was a good ruling.
So, even as a practical matter, you would rule out that option as an intermediate step? Obviously, right now, the SC does not consider the preborn to be persons under the 14th amendment.

I think eventually we will likely need an amendment making it explicit that human beings from fertilization are persons under the 5th and 14th amendments. If we had such an amendment, then it would be clear to everyone that, at that point, returning the issue to the states is unconstitutional. Because we do not yet have such an amendment and the SC dissents on this question, is option (3) not a viable stepping-stone toward option (2)? (Of course I acknowledge that it would also be great if the SC would just acknowledge it (option (1)), rather than having to amend the Constitution.

To expand further on what you are saying... Even if we agree that it is improper and unconstitutional to return it to the states, how far does that go? I mean, from what I understand, murder is typically handled by the states (unless it's a diplomat or involves crossing state lines or something like that). So different states have differing murder laws. So, for the most part, the federal government leaves murder legislation, enforcement, and adjudication to the states. But, presumably, if a state were to change their murder laws to no longer cover the killing of people of a certain category (race or whatever), then the federal government would step in. Perhaps someone more knowledgeable can tell me what particular actions the federal government would be likely to take in such a circumstance. We don't need the federal government to completely take over murder, with federal laws, but we would, in that circumstance, need to stop the state from depriving persons of equal protection of the law. What action(s) would (or should) the federal government take against the state that is violating the 14th amendment?

Another question: Suppose today a mother has her child killed, and the state and federal government do nothing, and the father is outraged and views this as a denial of equal protection of the laws in violation of the 14th amendment. Can the father press charges against, say, the state for violating the 14th amendment, demanding that the laws be applied equally to his murdered child? How does that work?

[historic salve]

So, even as a practical matter, you would rule out that option as an intermediate step? Obviously, right now, the SC does not consider the preborn to be persons under the 14th amendment.
I think there's a good chance for the Supreme Court to rule that Roe is not controlling. I'm most concerned about any notion of a "compromise" update to Roe. In such a case, even though the number of abortions may decrease state-by-state, it would become almost impossible (from a legal perspective) to abolish abortion entirely.


I think eventually we will likely need an amendment making it explicit that human beings from fertilization are persons under the 5th and 14th amendments. If we had such an amendment, then it would be clear to everyone that, at that point, returning the issue to the states is unconstitutional. Because we do not yet have such an amendment and the SC dissents on this question, is option (3) not a viable stepping-stone toward option (2)? (Of course I acknowledge that it would also be great if the SC would just acknowledge it (option (1)), rather than having to amend the Constitution.
I think an amendment to the Constitution to that effect would be great. But I strongly believe that a state-by-state solution is not the answer.


To expand further on what you are saying... Even if we agree that it is improper and unconstitutional to return it to the states, how far does that go? I mean, from what I understand, murder is typically handled by the states (unless it's a diplomat or involves crossing state lines or something like that). So different states have differing murder laws. So, for the most part, the federal government leaves murder legislation, enforcement, and adjudication to the states. But, presumably, if a state were to change their murder laws to no longer cover the killing of people of a certain category (race or whatever), then the federal government would step in. Perhaps someone more knowledgeable can tell me what particular actions the federal government would be likely to take in such a circumstance. We don't need the federal government to completely take over murder, with federal laws, but we would, in that circumstance, need to stop the state from depriving persons of equal protection of the law. What action(s) would (or should) the federal government take against the state that is violating the 14th amendment?
I don't know the protocol for that sort of thing, but as you say, enforcement is not an issue.


Another question: Suppose today a mother has her child killed, and the state and federal government do nothing, and the father is outraged and views this as a denial of equal protection of the laws in violation of the 14th amendment. Can the father press charges against, say, the state for violating the 14th amendment, demanding that the laws be applied equally to his murdered child? How does that work?
It would presumably work the same way any other murder case does. If abortion were illegal, then the parties involved would be brought to court. The state wouldn't be involved directly.