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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 May 13 at 13:50
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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.

  • 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 Sep 29 '18 at 19:56
  • There is the case of John Pickering. – user6726 Sep 29 '18 at 23:35
  • @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. – David Thornley Oct 1 '18 at 16:52
  • @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 Oct 1 '18 at 16:56
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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.

  • The Constitution does not protect people's lives. It's primarily a definition of what the Federal government can and can't do. – David Thornley Oct 1 '18 at 16:53
  • @DavidThornley what would you call the bill of rights? A constitutional Amendment protecting individual rights. If an unborn child would be seen as a person, the Bill of Rights could apply to it and protect it's rights. – Falco Oct 1 '18 at 16:57
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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 Oct 1 '18 at 16:57
  • 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 Oct 1 '18 at 17:01

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