General Question

queenzboulevard's avatar

Did Roe v. Wade create the law, or did Congress make the law after the case?

Asked by queenzboulevard (2544 points ) October 17th, 2008

In stead of Googling article after article about Roe v. Wade for the answer to my question, I figure the the people of Fluther world could answer this from their knowledge.
Did Congress pass the law because of the court case? What went on ‘post Roe v Wade’?

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10 Answers

jvgr's avatar

The issue of Roe v. Wade was brought to the court on the basis that it violated an existing law/fundamental right under the constituion. Only Congress can make new laws, courts uphold them (or not)

According to the Roe decision, most laws against abortion in the United States violated a constitutional right to privacy under the Due Process Clause of the Fourteenth Amendment. The decision overturned all state and federal laws outlawing or restricting abortion that were inconsistent with its holdings. Roe v. Wade is one of the most controversial and politically significant cases in U.S. Supreme Court history

Harp's avatar

@jvgr
The generally accepted Fluther protocol is to use quotes and credit sources when you cut and paste answers.

queenzboulevard's avatar

Aha, now part B. Hypothetically (obviously) if McCain were elected, appoints two new conservative judges, judges who tip the balance of power, and who rule in favor of pro-lifers, how does that help those who oppose abortion? The SC does not create laws, and with a Democratic majority in Congress any anti-abortion legislation would get shot down, right? If so how is it that voting for McCain, simply because you want abortion ‘illegalized,’ is beneficial? Opinions on my opinion?

fireside's avatar

I believe that what they would rule is that the Federal government has no right to legislate the issue. At that point, it would go to the State legislatures to decide the issue for their states.

jvgr's avatar

@Harp: is correct. I did neglect to acknowledge the entry in Wikipedia :“According to the Roe decision, most laws against abortion in the United States violated a constitutional right to privacy under the Due Process Clause of the Fourteenth Amendment. The decision overturned all state and federal laws outlawing or restricting abortion that were inconsistent with its holdings. Roe v. Wade is one of the most controversial and politically significant cases in U.S. Supreme Court history:”

fireside's avatar

@jvgr – “link” :http://www.fluther.com → link
see below

dalepetrie's avatar

Some states (see South Dakota) have passed laws banning virtually all abortions in defiance of Roe v. Wade on the basis that it is a state issue and not a federal issue.

You will notice that both Bush and McCain have said they will appoint “strict Constructionist judges” but they will not have an ideological “litmus test”.

A “strict Constructionist” judge is one who believes states should be able to decide on social matter such as abortion.

In other words, if a liberal member of the judge leaves under a President McCain, McCain can appoint a judge who isn’t necessarily “left leaning”, but who would push the issue back to the states if it ever came up.

And since states like South Dakota have passed these laws and others are trying to pass them, and of course organizations like Planned Parenthood are bringing lawsuits which are working their way up through the system to try to invalidate these laws, suit after suit after suit is filed up along the line until in a few years, when the court has at least 5 people who are either anti-abortion or pro states rights, hear the case, and decide that they need to overturn Roe v. Wade and make it a state’s issue.

Ergo, it doesn’t become illegal everywhere, but the more conservative states will ban the procedure.

galileogirl's avatar

However when a state law is in conflict with the Constitution, the Constitution shall prevail according to the Supremacy Clause. The South Dakota laws have not yet been tested at the highest level. It is my opinion that almost all anti-abortion legislation will be overturned as a violation of due process and the right to privacy. The exceptions might include informing the legal guardian of a minor (just to make sure the medical provider is made aware of any medical conditions that might endanger the minor’s life) and a third trimester abortion where the fetus is viable and the mother’s physical health is not endangered-which Dr’s wouldn’t do in any case because of the Hippocratic Oath.

The anti-abortion contingent should not automatically assume that conservative judges will uphold laws like those of S.D. The more conservative the judge, the more loath s/he will be to go against precedent especially when it is as important a concept as due process.

If the next president chooses to nominate some political hack to the Supreme Court he will most likely be facing a Democratic controlled Senate (even if Obama loses, there will be a Democratic Senate), which will not pass on such a candidate (like Clarence Thomas).

AlfredaPrufrock's avatar

The constitutional right to abortion is comprised of two decisions: Roe v. Wade and Doe v. Bolton.

plbob's avatar

Could a conservative congress enact a separate anti-abortion law, circumventing Roe v Wade, of course based on Constitutional foundation?

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