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Here's my layman's understanding of Roe v Wade:

  • A state had a law prohibiting abortion;
  • That law was challenged all the way up to the Supreme Court;
  • The Supreme Court found a right to abortion in the 14th Amendment;
  • The right to abortion was thus determined to be constitutionally protected;
  • The Constitution takes precedence over both state and federal law;
  • Therefore, neither the states nor the federal government may pass any law abridging the right to abortion.

If Roe v Wade were to be overturned by some future Supreme Court, it would mean that the right to abortion is not found in the Constitution, and therefore not constitutionally protected. Thus, the states and the federal government would be free to pass laws banning abortion, if they so choose.

I think many Americans would be surprised to learn that if Roe v Wade were overturned, it wouldn't mean abortion is automatically outlawed throughout the land. It means every state and the federal government would have the opportunity to make its own laws about it. (Get ready for 50+1 more battles, I guess.)

But could a future Supreme Court not only overturn Roe v Wade, but also find that abortion is prohibited by the Constitution, thereby preventing the states from making their own laws about it? Does the Supreme Court ever rule that something is prohibited, or only protected/not protected?

Not exactly sure how this could go down anyway. The Supreme Court doesn't write laws, and a prohibition on abortion would have to involve not only the prohibitory statement itself, but also exact definitions, sentencing mandates, parole guidelines, etc. This sounds more like the state legal codes on homicide (first-degree murder, premeditated murder, vehicular homicide, manslaughter, accidental homicide, accessory to murder, etc.) than a Supreme Court ruling.

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    Six states have 'trigger laws' (en.wikipedia.org/wiki/Trigger_law) in place outlawing abortion automatically if Roe is ever overturned, so in those states, Roe v. Wade being overturned would automatically mean the outlaw of abortion.
    – Billy
    Commented May 13, 2019 at 13:50

2 Answers 2

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There is no higher court which can overturn a SCOTUS decision, so in theory (or, imaginarily) they can rule any way they please. The ruling could then be overturned by a later court, as happened in these cases. However, justices of the Supreme Court can be impeached (impeachment is not subject to judicial review), so the individuals responsible for such a ruling could be impeached. Or, if the sitting president is favorable and the enabling legislation has been passed, additional members of the Supreme could be added, as was unsuccessfully attempted during the Roosevelt administration.

The court could not write specific enforceable statutes defining the crime and imposing a penalty. They could rule that there is such-and-such right which is protected by the Cconstitution, and that that right must be protected by the states (for instance, a state may not pass a law that prohibits practicing the Pastafarian religion). It would be unprecedented, though, for SCOTUS to order a legislature to pass particular legislation. That would not mean that a ruling could not be written which mandated that, but it would be a huge break from tradition and a clear breach of the separation of powers. Legislatures could respond "they have made their decision; now let them enforce it".

Decades ago, existing state death penalty laws were declared unconstitutional as defective with respect to the 8th Amendment, meaning that there was no death penalty in many states for some time. Homicide statutes could likewise be struck down en masse, perhaps as an Equal Rights violation, which would means that either homicide is now legal, or the Equal Rights violation in those statutes must be eliminated. All that SCOTUS would have to do is rule that a fetus is a person. Recall Roe v. Wade:

If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.

A model for how this might take place is McCleary v.Washington, where the Washington Supreme Court ordered the legislature to act to fund public education, on constitutional grounds that the legislature has an obligation to do certain things. The leverage imposed by the court was a large daily contempt fine that went up to over $100 million. However this was symbolic (lifted when the legislation was passed), and it took 3 years to implement the order.

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  • The prospect of Congress impeaching a justice because it didn't like a decision is contrary to the constitution. Such an impeachment would indeed be unreviewable, but that doesn't make it right, nor probable. Also the congress would have to be involved I'm adding justices because the court's size is set by statute.
    – phoog
    Commented Sep 29, 2018 at 19:56
  • There is the case of John Pickering.
    – user6726
    Commented Sep 29, 2018 at 23:35
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    @phoog: A justice could be impeached on other grounds, and the impeachment could be motivated by a decision. It's not something I want to see happen, but impeachment itself is more political than judicial. Commented Oct 1, 2018 at 16:52
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    @DavidThornley indeed. That seems to be more than anything else what happened with Pickering. But the more removed the circumstances are from clear "bribery, treason, and other high crimes or misdemeanors," the less likely it will be for sufficient votes to be cast.
    – phoog
    Commented Oct 1, 2018 at 16:56
  • in theory justices can be impeached. As every impeachment case involving congress has shown in practice one political party or another will back up the justice, depending on their affiliation, resulting in at most a ~50% vote to impeach which isn't enough to remove anyone from office. In other words the threat of impeachment is an empty one even before you consider how unlikely it is for anyone to risk the political backfire of attempting it for clearly political reasons. I doubt any judge would seriously be worried about being impeached for a decision they make, even an unpopular one.
    – dsollen
    Commented May 6, 2022 at 2:15
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This could easily happen, since a prohibition of one thing can most likely be formulated as the protection of something else. So if SCOTUS decides that unborn life is protected by the Constitution starting with the first month of pregnancy, this would in effect make abortion illegal.

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    @DavidThornley it seems to me that prohibiting the federal government from depriving someone of life except by due process of law constitutes a protection of peoples' lives.
    – phoog
    Commented Oct 1, 2018 at 16:57
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    Falco: if the bill of rights applied to fetuses, it would limit the ability of the government to deprive them of life. The fifth amendment does not require the federal government to criminalize murder, for example, and if fetuses were found to be protected by the fifth amendment, it would similarly not require the federal government to criminalize abortion.
    – phoog
    Commented Oct 1, 2018 at 17:01
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    @phoog While it wouldn't require them to criminalize abortion, it might prevent them from funding abortion (e.g. through Medicaid).
    – Barmar
    Commented May 23, 2019 at 0:03
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    There is a movement called fetal personhood, which is well on its way to being law in Missouti and several other states. And if the SCOTUS mandated it, then indeed abortion would be banned nationwide. And pregnant women could use carpool lanes. I wonder if they could demand child tax credits per egg. Commented May 9, 2022 at 20:37
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    They couldn't ban abortion (as we're talking about state-level crimes), but if someone somehow got standing to bring a case, they could theoretically make a 14th Amendment equal protection argument that unborn life deserves the same protection under state laws against violent crime as those who have been born.
    – David A
    Commented Jul 3, 2022 at 22:17

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