Dem senator warns Supreme Court of 'revolution' if Roe v. Wade is overturned

Okay, but I was wondering how the statute would be worded. Specifically.

To the extent that the law provided for the establishment of federally funded and operated abortion clinics, the states would be unable to restrict access. That might work federally (not that I like it, legally or morally.) They could set up the clinics in no-end of federally owned properties, like VA hospitals or even converted post offices.

But if it said, "It being the sense of Congress that Roe v. Wade is the federal law of the land, establishing an unrestricted right to terminate pregnancies during the first trimester, state and local law enforcement agencies are hereby prohibited from restricting the establishment and operation of or access to privately funded abortion clinics," that in my opinion would be beyond the power of Congress to enact or enforce.

 

OK well I don't know about the theoretical text for a law that hasn't happened in all the decades since Roe v Wade and may not ever happen, but RvW doesn't in any way provide for federally funded abortion clinics. I don't know what point you are trying to make there.

 

My point is that Congress lacks power to prohibit state governments from limiting abortion. The Courts can, but they aren't the Supreme Court and don't have the power to create rights. The only way I can see is to create federal clinics as "necessary and proper to implement the rights recignozed by the Supreme Court in Roe." Or something to that effect.

 

OK it sounds like your position is the opposite of mine; you seem to think that Roe v Wade was decided, whether you agree with it or not, as a constitutionally valid court decision. I don't. I think it was improperly decided outside the bounds of common law, statutory law, and the constitution.

 

No, that is not my point at all. Roe is a ridiculous decision. My point is that only the federal courts (not the congress) has inherent power to declare state actions violative of an affirmative constitutional right. (And the congress cannot create rights themselves.) That is not the same thing as saying that "the Supreme Court is always right." But short of civil war or a constitutional amendment, there is no place to go once they decide.

That said, if Roe is overturned, Congress cannot resurrect it by legislation because they can't codify a right that no longer exists. I explained that a couple of posts back.

If it is not overturned, then it will stand on its own and congress will have no motivation to codify it.

In short, they need to busy themselves with another subject, and the Supreme Court, as Justice Scalia said, should "get out of this area" [of abortion unless and until the People amend the constitution to explicitly establish a right to abortion.]

 

OK you explained yourself and my comment still stands. We are on opposite sides of judicial and legislative power. Courts can't create "rights." Lawmakers can.

 

No, you're misunderstanding and misquoting me. I did not and do not say that courts can create rights. They cannot. That's as clear as I can state it.

What they can do, ever since Marbury v. Madison, is to say, this to the exclsion of the other two branches, what the constitution means. No one disagrees with this. Sometimes their rulings are dumb, as in Roe. Sure. But there is no state attorney General, not a single one, who does not accept that Roe is current law. That's why Mississippi is applying to them, and not to the Congress or the President, now. Bad law, sure, but "law" nonetheless. Who has challenged Roe with force? Why not? Because it is generally accepted that Roe, wrong as it is, is the law. I'm talking law in terms of power, not right or wrong.

That's what they did in Griswold, which led to Roe. Both decisions lack constitutional foundation in my and your opinion, but they unquestionably have the greater power to speak to the issue.

Suppose Roe had been decided the other way? Would the congress have had the power to "pass a law" overruling Roe and declaring that abortion is murder, that it is NOT a constitutional right, and to pass legislation criminalizing abortion and a federal remedy for violations? Like what?

If not, why not?

If congress goes ahead and does it anyway, I can no more stop them than I can stop the Supreme Court from reaffirming Roe, but the weight of authority is on my side.

 

When I say "the law" in the above passage, I mean "decisional law," or "case law," which is a real thing. I understand that it is not an act of Congress.
https://www.lexico.com/en/definition/decisional_law

 

First, thanks for the clarification. Secondly, if Congress passed a law that would in effect overturn Roe, it would be challenged and we would be in the same position, a law being challenged in court based on the Roe ruling. So depending on the court, the law could still overturn Roe.

The more direct constitutional answer would be for Congress to remove the jurisdiction of abortion from the prevue of the Supreme Court via The exceptions Clause.

 

Yes it would take an Amendment unless the Supreme Court upholds Roe: then you wouldn't need an Amendment. I guess you could start a movement to amend the constitution to make sure the right survived some future court, or maybe even this court.

But why do you think it "would happen in short order"? It's very hard to do.

To ratify amendments, three-fourths of the state legislatures must approve them, or ratifying conventions in three-fourths of the states must approve them.

We aren't even close to that kind of national consensus on the desirability of a constitutionally established right to abortion.

 

I disagree. The desirability of the right to abortion vs the controversy of this issue shows nothing more clearly than how disproportionate the influence of a small group of fanatics can be in Democracies. It also illustrates rather clearly why religious issues cannot be left to the States.

 

Both can. Courts can recognize rights that have been there all along, as in Roe, or reinterpret law to enable them, as Brown vs Board "overturning" Plessy vs Ferguson. The Supreme Virtue of our Constitution and our Supreme Court is that I can think of very few decisions it has ever made that have given us fewer rights while we have expanded them all the time.

 

What about Cuba? As I said. Communism is a statist idea that is utopian. It always morphs into something not quite like the original. Problem? It doesn't take human nature into account!

 

I don't know a lot about Cuba. What I do know seems to indicate it may be trying to become sort of what it was before, that is, a sort of resort colony of the US though without the institutionalized corruption of the Batista regime allied with American organized crime. If the Latin American Drug Cartels don't take it over it might survive as a Bill of Rights country

Communism is dead and has been since 1989. Nobody seriously espouses it any more though dictatorships still find it useful for propaganda

 

If anyone thinks these sanctimonius religious creeps are going to stop at letting the states decide, you are fooling yourself. Why would they care so much about the unborn that they would fight this for decades only to declare victory because the bible belt outlawed it but California allows it? The next war on women will be about contraception and making it illegal NATIONALLY to have an abortion. These horrid people will not quit until women are in shackles.

 

"Courts can recognize rights that have been there all along..."

That's funny!

 

What's funny about it?

I realize that our basic rights are a source of great amusement to all authoritarians, whose only right they wish to concede is the right to obey but I'm an American.

 

Medicare and Medicaid both provide for ALL health services that are needed by their clientele

 

Oh I just thought it was funny that you seem to think the authors of the 14th Amendment intended for abortion to be covered as a "right." It's kind of like how the Massachusetts Supreme Court determined that it's constitution, written in the 1600's, enshrined gay marriage. Very progressive puritans.

 

So Medicaid covers abortion?

I think it would be more problematic is Medicare did. That would generate a news story.

 

Catch a few episodes of the The Handmaid's Tale. That's what they want for us.

 

Like I say, the only right authoritarians respect is the right to obey when our betters dictate, they find it vastly entertaining, as if their cattle and pigs should ask to run the farm.

 

Well that's a non sequitur.

 

Government benefits should cover all medical procedures, whether small cadres of religious fanatics approve or not.

 

Should...in other words they don't.

Thank you.