I've gotten several emails (three actually) asking me to talk about what overturning Roe will mean. So here goes.
Let's start with the legal part first because that's causing the most confusion.
Whatever your views on abortion, Roe was a terrible legal decision. It was premised on nothing more than the desire of the court to find a new right. They relied on social science data and politics in the decision, rather than legal precedent, and they invented the right not from anything written in the constitution itself (like "Congress shall not...") but from the "penumbra" of the constitution -- the glow of the whole thing. It's true. Not making that up. Total bullship, legally speaking.
So what happens if they strike Roe down? Does abortion become legal or illegal? Yes, but not like you think.
What Roe does now is create a legal right to abortion requiring that it remain legal to some extent. That means the states and/or Congress cannot flat out ban it. To what extent it can be blocked or regulated is what all the cases since Roe have been about. You can do this, but not that, etc. etc. If you remove Roe, that right disappears and abortion becomes a question for the legislature. Until the legislature speaks, however, it actually becomes legal because things are not presumptively outlawed in our system until they are made illegal.
But then it can be made illegal, right? Sure.
Buuuut, if you want to know how this plays out, it's not going to be made illegal. First, there are only a couple southern states which will actually ban abortion. I count Mississippi and Alabama. Georgia and Texas (maybe a couple more) will probably add some regulations, but that's about it. Places like California and Maryland, on the other hand, will allow abortion on demand until birth. Most every other state will most likely pass laws keeping things as they are right now. So expect illegal in two states, legal in 48 with a couple SUPER legal. As for the people in the illegal states, they will be able to travel to any number of other states to get the procedure done. Stopping them will violation equal protection laws. So realistically, no one will be stopped.
Then it gets ugly. The next time the Democrats hold the Congress and the White House (like now), they will be able to pass an abortion law that prevents the states from passing their own laws -- undoing every state's laws. When Congress speaks, the states cannot. What will they pass? Well, odds are good they would pass the California version of unrestricted abortion on demand and impose it on every state. Is there a valid 10th Amendment argument against allowing that? No.
Could Republicans ban it if they got the White House and Congress? Possibly but I doubt it. The government cannot just ban things, and there are several rights in the constitution which I doubt they can overcome. They can try though.
[+] Read More...
Let's start with the legal part first because that's causing the most confusion.
Whatever your views on abortion, Roe was a terrible legal decision. It was premised on nothing more than the desire of the court to find a new right. They relied on social science data and politics in the decision, rather than legal precedent, and they invented the right not from anything written in the constitution itself (like "Congress shall not...") but from the "penumbra" of the constitution -- the glow of the whole thing. It's true. Not making that up. Total bullship, legally speaking.
So what happens if they strike Roe down? Does abortion become legal or illegal? Yes, but not like you think.
What Roe does now is create a legal right to abortion requiring that it remain legal to some extent. That means the states and/or Congress cannot flat out ban it. To what extent it can be blocked or regulated is what all the cases since Roe have been about. You can do this, but not that, etc. etc. If you remove Roe, that right disappears and abortion becomes a question for the legislature. Until the legislature speaks, however, it actually becomes legal because things are not presumptively outlawed in our system until they are made illegal.
But then it can be made illegal, right? Sure.
Buuuut, if you want to know how this plays out, it's not going to be made illegal. First, there are only a couple southern states which will actually ban abortion. I count Mississippi and Alabama. Georgia and Texas (maybe a couple more) will probably add some regulations, but that's about it. Places like California and Maryland, on the other hand, will allow abortion on demand until birth. Most every other state will most likely pass laws keeping things as they are right now. So expect illegal in two states, legal in 48 with a couple SUPER legal. As for the people in the illegal states, they will be able to travel to any number of other states to get the procedure done. Stopping them will violation equal protection laws. So realistically, no one will be stopped.
Then it gets ugly. The next time the Democrats hold the Congress and the White House (like now), they will be able to pass an abortion law that prevents the states from passing their own laws -- undoing every state's laws. When Congress speaks, the states cannot. What will they pass? Well, odds are good they would pass the California version of unrestricted abortion on demand and impose it on every state. Is there a valid 10th Amendment argument against allowing that? No.
Could Republicans ban it if they got the White House and Congress? Possibly but I doubt it. The government cannot just ban things, and there are several rights in the constitution which I doubt they can overcome. They can try though.