fandomsecrets | [ SECRET POST #2135 ]

⌈ Secret Post #2135 ⌋

Warning: Some secrets are NOT worksafe and may contain SPOILERS.

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Notes:

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ayrt

I think, with regards to judges - it's not that they're going to do anything fundamentally unconstitutional, but rather that they're going to use a philosophy that I think fundamentally wrong-headed and which would have bad effects. And in practice, the legislative branch doesn't exercise any power over the judicial branch except in the sense that it passes laws and it confirms their appointments. Being appointed doesn't technically give the judges free reign, but for all intents and purposes it does, as long as they don't do anything wacky.

we cool tho

and i guess it would be up to the legislative branch to determine what is and isn't "wacky" but again they do have the power to impeach judges. if roe v wade was ever overturned it would be because it was decided that the courts didn't have that kind of reach, so any law that would, in effect, criminalise abortion would by default be just as unconstitutional. if the courts didn't realise that, the legislature would.

Hrm...? No, not really.

if Roe V Wade were overturned, what that would mean is that the courts would decide that US citizens do not have a constitutional right to privacy, or that said constitutional right to privacy does not include abortion. as of now, the reason that no state can ban abortion is because, under the current understanding of the constitution, there's a fundamental individual right that an abortion ban would contravene. Roe v Wade wouldn't be overturned on the grounds that the Supreme Court isn't competent to determine abortion law; it absolutely is competent insofar as abortion law is a constitutional matter. Roe V Wade being overturned would be a decision that there's no constitutional protection for abortion. and that would leave the matter open to legislation from the states or from Congress to ban it.

at least i think so

defining the issue of abortion as one not within the reach of a right to privacy wouldn't criminalise it though, not inherently. what it would do is necessitate the reworking of protective legislation for abortion for each state. roe v wade rendered abortion a legal right on a federal level; for a president to desire that responsibility go to each state is more a reflection on his or her desire to empower states rather than criminalise abortion. to criminalise abortion you'd have to overturn roe v wade and pass new legislation making it inherently illegal, since abortion bans prior to roe v wade are obviously no longer in place.

i'm just saying, romney wasn't aiming to do that during his run. his stance was that he wanted to change the issue of legality from a judicial mandate to a state choice. obviously without the federal law there this would make it easier for state to restrict abortion rights, but if romney was as set out to criminalise it as people are led to believe, giving power to the states is not the route he would take. states already have a lot of power and they do have the right to challenge the federal government's decisions, so that would be a big risk, namely since this could go both ways (states could add more restrictions or enable more freedoms).

in the long run i view romney as someone who is against abortion personally but i think he was doing the right thing by expressing his wish that the issue be left in the hands of the states rather than his administration. it's also clear that he doesn't think the court had the power to make the decision.

so i see what you're saying but by deciding that roe v wade is unconstitutional, an executive would not be saying there is no constitutional right to privacy. that right is already there, under the 14th amendment. instead it would be saying that abortion is not an issue to be included in this definition, and/or that the courts didn't have the kind of reach they were utilising in this case. i'm not implying it's an issue of competency. it's merely an issue of power balance. all an overturning of roe v wade would do is remove abortion from the scope of privacy protection, thereby subjecting it to state law. it wouldn't inherently ban abortion in itself.

Ehhhhhh. I mean, what you're saying is broadly true - the effect of overturning roe v wade would not be immediately to criminalize it inherently. it would be to return the matter to the states. but the effect would be in many cases to criminalize it, since abortion bans would almost immediately be passed in many states - certainly most deep red states. i mean, there's a reason why overturning roe v wade is the focus of the pro-life movement (and hence why supreme court nominations are of supreme importance to that movement) - because as it stands, changing the issue of legality from a constitutional issue to a state choice is the only way forward to ban abortion. it's not a risk, because for one thing, the situation can only get better for the pro-life crowd - states currently have the ability to make abortion less difficult but not more difficult, and overturning Roe would change that. and, almost immediately, much of the country would have abortion banned - and although that would not be the legal effect of overturning roe v wade, it would be the result of doing so, and pro-choice activists want to overturn it for that reason. for all intents and purposes, overturning roe v wade would have the effect of criminalizing abortion in many states.

and although i think there is space for a principled stand on the issue on the ground that it ought to be the domain of the states, and i admire you for seeming to take such a stance and i respect it, almost all people who care about roe v wade do so because they either want to criminalize or avoid the criminalization of abortion. and i think that applies to romney as well, at the very least in the sense that, regardless of his personal beliefs, partisan politics in the United States would require him to nominate a Supreme Court justice who would overturn abortion to palliate his evangelical anti-abortion supporters.

and i just want to say in closing that this has been a really interesting conversation, and thanks for that

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