Roe V Wade Is Doomed...

[seer]

Let the states decide? Why not just let women decide for themselves then?

OK, then let's just make it illegal.

[KingsGambit]

But political will changes and just as Roe was once viewed as unassailable politically, sexual orientation hysteria will eventually change and the law will likely change with it.

What basis do you have for thinking this will happen?

[One Bad Pig]

Let the states decide? Why not just let women decide for themselves then?

Because the idea of materfamilias isn't any better than that of paterfamilias?

[rogue06]

Let the states decide? Why not just let women decide for themselves then?

What an interesting concept for deciding law. I'm sure you'd be happy if we let only those who pay income taxes have a say in raising income taxes, right? And only those who own property can have a say about raising property tax.

[Terraceth]

This has been the mantra on the left since Kennedy retired. First, that would be good. Second, it is not at all certain. Third, it would not end abortion be just revert it back to the states where the decision should be. It was bad law to begin with, with no Constitutional justification. To quote the liberal legal scholar Laurence Tribe, “Behind its own verbal smokescreen the substantive judgment on which it rests is nowhere to be found.”

When people start worrying (or hoping) for a Roe v. Wade repeal due to Kennedy being replaced by a Trump nominee, I wonder if they actually understand what it would take to accomplish that.

It takes 5 justices to overrule a decision. Now, the last time the Supreme Court directly addressed the issue, I believe, was Gonzales v. Carhart. The Court voted 5-4 to uphold the Partial-Birth Abortion Ban Act. But the important thing here is Clarence Thomas's concurrence (joined by Scalia) where he argued that Roe v. Wade was incorrect to begin with and should be overturned. So that's only 2 justices who seemed to actually want to overturn it, and one of them has died, leaving only one. Even assuming Gorsuch would vote to overturn it--which is a major assumption--and that whoever Trump nominates would do so, that's only 3 votes, short of the requisite 5.

It's possible that Roberts and Alito declined to join in in that concurrence because there wouldn't have been enough to make it the main opinion, and that if Anthony Kennedy was replaced by someone willing to overrule Roe v Wade (and if Gorsuch joined in doing so), they might be willing to go the whole way. It's also possible that they (and possibly another justice) changed their mind in the meantime. But that's a whole lot of assumptions to make it work.

I'd love to see Roe v. Wade overruled (setting aside the morality issue of abortion--which admittedly the Supreme Court should do, as they should issue rulings based on legality, not morality--it's simply based on bad legal reasoning), but unfortunately it's unlikely to happen in the near future. I think people just try to make it sound like a potential overturn is imminent to try to incentivize others (whether that be to try to keep it on the books or take it off). Most likely, at best we'll get some restrictions on it, which admittedly is still an improvement.

[thewriteranon]

I don't know that I would read too much into Justice Thomas' concurrence there. It is literally a paragraph that states his opposition to Roe. Justices join or don't join concurrences or dissents for lots of reasons.

[Tassman]

Gay marriage enjoys popular support. If SCOTUS were to reverse their decision that it is constitutionally protected you'd likely see swift legislative action to change that and would in all likelihood receive a good deal of support from Republicans.

Both gay marriage AND abortion enjoy popular support according to Pew Research and, regardless of conservative opinion, with elections coming up neither issues are likely to get active support from GOP members of congress or state governors. The change of the balance of power in the SCOTUS has put conservative legislators on the spot. They can no longer shrug their shoulders and say "our hands are tied".

[Tassman]

Let the states decide? Why not just let women decide for themselves then?

Evangelicals know best. They will never allow women to murder their babies. <sarcasm>.

[Terraceth]

I don't know that I would read too much into Justice Thomas' concurrence there. It is literally a paragraph that states his opposition to Roe. Justices join or don't join concurrences or dissents for lots of reasons.

Well, my point was that Thomas is the only current justice that we actually know would, if given the opportunity, overturn Roe v Wade entirely. We don't know that for anyone else.

[NorrinRadd]

When people start worrying (or hoping) for a Roe v. Wade repeal due to Kennedy being replaced by a Trump nominee, I wonder if they actually understand what it would take to accomplish that.

Agreed. Even apart from your detailed analysis, it's often the case that originalists/textualists are also judicial conservatives as opposed to judicial activists. It takes just the right case presented just the right way to overcome stare decisis.

...

I'd love to see Roe v. Wade overruled (setting aside the morality issue of abortion--which admittedly the Supreme Court should do, as they should issue rulings based on legality, not morality--it's simply based on bad legal reasoning), but unfortunately it's unlikely to happen in the near future. I think people just try to make it sound like a potential overturn is imminent to try to incentivize others (whether that be to try to keep it on the books or take it off). Most likely, at best we'll get some restrictions on it, which admittedly is still an improvement.

I'm not sure how "setting aside the morality issue" is possible. If the unborn human is basically just a parasite growing in the woman, there is literally no moral reason for any restrictions at all.

[rogue06]

Both gay marriage AND abortion enjoy popular support according to Pew Research and, regardless of conservative opinion, with elections coming up neither issues are likely to get active support from GOP members of congress or state governors. The change of the balance of power in the SCOTUS has put conservative legislators on the spot. They can no longer shrug their shoulders and say "our hands are tied".

When you look at polls that ask about increasing restrictions on it in one form or another you find that a decided majority (including women) favor doing so.

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For instance in the above Gallup Poll only 29% want it legal under all circumstances (abortion on demand), whereas 50% want it legal only under certain conditions and another 18% want to see it outlawed entirely. This means that 68% would like to see further restrictions placed on abortion.

Similarly a Marist poll taken this year and released on the anniversary of Roe v. Wade found that 76% of Americans want to see "significant restrictions" placed on abortions -- including 60% of those who identify as pro-choice. It also found that 56% of Americans think abortion is morally wrong (only 41% think it's morally acceptable) and 52% think having an abortion does more harm than good to a woman's life in the long run (only 29% think it improves their life). The poll also found that the proportion of Americans who favor banning abortions after 20 weeks is up from 59% in January 2017 to 63% this year with a significant increase in the number of Democrats (56%) that share this view compared to 49% a year ago.

[JimL]

What an interesting concept for deciding law. I'm sure you'd be happy if we let only those who pay income taxes have a say in raising income taxes, right? And only those who own property can have a say about raising property tax.

Don't be stupid. The women making the decision to have an abortion wouldn't be deciding/making law, they would be taking advantage of there being no such existing law. The right to choose would mean that there is no law against abortion.

[JimL]

When you look at polls that ask about increasing restrictions on it in one form or another you find that a decided majority (including women) favor doing so.

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For instance in the above Gallup Poll only 29% want it legal under all circumstances (abortion on demand), whereas 50% want it legal only under certain conditions and another 18% want to see it outlawed entirely. This means that 68% would like to see further restrictions placed on abortion.

Similarly a Marist poll taken this year and released on the anniversary of Roe v. Wade found that 76% of Americans want to see "significant restrictions" placed on abortions -- including 60% of those who identify as pro-choice. It also found that 56% of Americans think abortion is morally wrong (only 41% think it's morally acceptable) and 52% think having an abortion does more harm than good to a woman's life in the long run (only 29% think it improves their life). The poll also found that the proportion of Americans who favor banning abortions after 20 weeks is up from 59% in January 2017 to 63% this year with a significant increase in the number of Democrats (56%) that share this view compared to 49% a year ago.

So what, most americans continue to favor a womans right to choose and that basically it's non of the governments business.

[rogue06]

Don't be stupid. The women making the decision to have an abortion wouldn't be deciding/making law, they would be taking advantage of there being no such existing law. The right to choose would mean that there is no law against abortion.

So then why not let the woman decide if she wants to dispose of her children if they become bothersome a la Susan Smith? Isn't it her right to chose? Your buddy starlight seems to think so.

[rogue06]

So what, most americans continue to favor a womans right to choose and that basically it's non of the governments business.

Wrong. An overwhelming majority of Americans want "significant restrictions" placed on abortion.