RSS 2.0 FeedWhat Occurs If Roe v. Wade Is Overturned?
by Brad WarbianyAhh, the abortion debate. Nothing raises peoples’ ire like Roe v. Wade. As I’ve stated before, the whole debate is a legal conundrum, where the Supreme Court has put up a nearly indefensible reasoning considering their other cases.
But what would happen if Roe were overturned? Well, most Republicans will tell you what will happen. It will go back to the states, and each state will have the ability to decide whether abortion is or is not illegal. The states which currently have laws creating huge barriers to abortion will outlaw it; the states which don’t will continue to have it legal and easily available.
But those Republicans are lying to you. They don’t want this to go to the states, they want abortion to be outlawed nationwide. And they’ve got a trump card which they haven’t let on to, which will do it. The 14th Amendment.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.
You see, the people who are looking for the end of abortion aren’t looking to end the “right to privacy” and send this back to the states. They don’t want to allow individual states to decide this for themselves, which is likely the right way to handle the situation from a constitutional perspective. They want to see conservative judicial activists declare that the unborn is a person and thus deserves equal protection.
Now, you can debate whether this would be the right decision or the wrong decision. If you do so in the comments, I’m not going to participate, because it’s not a debate I care to engage in. But understand that this is what is desired by the conservative Republicans. It’s not to overturn Roe v. Wade, it’s to give 14th Amendment rights to the unborn, which would by definition declare that abortion is murder.
I’m a big fan of honesty in debates. When someone like McCain or Brownback suggests that Roe should be overturned to send the debate back to the states, remember what they mean. They don’t want the issue to go back to the states, they want to get another conservative activist (such as Alito or Roberts, unlike someone like Thomas) on the bench who will take the 14th Amendment approach I describe above. They don’t want to see it overturned, they want to find abortion blatantly unconstitutional.
You are correct that the ideal outcome from a pro-life perspective would be for the Supreme Court to reverse Roe v. Wade by declaring the unborn a person and then applying the Fourteenth Amendment. (Roe itself touched on this, and its justification for then denying that the unborn is a person–for all intents and purposes, an argument from silence–is, in my opinion, stunningly flimsy.)
However, this is not the only way the ruling might be overturned, and it might well be considered the least likely outcome of all, given the drastic and sudden shift such a ruling would generate. It’s far more likely that the Court would overturn Roe while at the same time either upholding or not examining the finding that the unborn is not a person.
With neither side being able to claim a Constitutional imperative, this would return regulation of abortion to the states, as McCain et al claim–for the time being, anyway. (This is an issue that, like slavery before it, will in all likelihood eventually require a national resolution; however, as of yet neither side is anywhere near that point.)
Comment by Shack — March 13, 2007 @ 5:09 amYou are wrong on what ALL (or the majority of) conservative republicans want. How can you say that you know the MINDS of other people?
We want Roe v Wade to be overturned so that the abortion issue goes back to EACH state to decide politically, not by judicial overlords.
Comment by WJ — March 13, 2007 @ 5:54 amRoe should be overturned regardless of which political tribe one belongs to. Roe is a dubious law – based entirely on a legally shaky right to privacy.
Conservatives should want it overturned and sent to the states and abortion made illegal based on the personhood of the fetus – right to life attaches.
Liberals should want it overturned and sent to the states and abortion made legal on a substantial framework such as proving the fetus is not a person – no right to life. If not, they will constantly find themselves having to fight this battle over and over again.
Unfortunately, extremists on both sides are not that rational and constitutionally-minded.
Comment by trav.is — March 13, 2007 @ 6:38 pm