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Following the Roe v. Wade decision, abortion became legal in all fifty states. However, Congress never had to pass a law or constitutional amendment defending abortion rights.

In what types of cases is precedent, as opposed to legislation, used to establish law? Is there no set rule or custom? Does it simply change based on opportunity and circumstance?

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    The answer provided does say this, but it is worth highlighting: no laws and no constitutional amendments were needed because, in fact, the Constitution protects the rights in question.
    – A.fm.
    Feb 15, 2019 at 21:06

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In what types of cases is precedent, as opposed to legislation, used to establish law? Is there no set custom?

In controversies where legislation does not provide sufficient guidance on what conditions are indispensable and what remedies or outcome shall follow. Even in those scenarios, case law is required to abide by the Constitution and not be inconsistent with the existing legislation (unless that legislation turns out to be unconstitutional).

However, Congress never had to pass a law or constitutional amendment defending abortion rights.

That is because the holdings in Roe v Wade purportedly do not contravene the Constitution.

By contrast, if Congress seeks to outlaw abortion or make it strictly dependent on state law, Congress would have to start by amending the Constitution in a way that renders criteria of quickening and fetal viability irrelevant to the recognition of a fetus as a person.

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  • Congress has a variety of tools other than Constitutional amendment for defanging SCOTUS decisions.
    – Ben Voigt
    Feb 16, 2019 at 19:55
  • @BenVoigt Of course. They consist of legislative enactments and perhaps other lesser-known types of provisions that differ only in the form or in the procedure of producing them. Constitutional amendments are needed only when the new legislative intent is or can be deemed unconstitutional. It is clear that not every SCOTUS decision would require a constitutional amendment, but I focused on the OP's example of Roe v Wade, a case which would require constitutional amendment if Congress sought to supersede at least some of the SCOTUS's holdings. Feb 16, 2019 at 20:14
  • Congress has other tools. Trying to use any of them would surely result in a fight in the Supreme Court, but it makes no sense to assume that Congress's attempt would fail, as jurisdictional stripping has had some past successes.
    – Ben Voigt
    Feb 16, 2019 at 20:17
  • @BenVoigt I don't doubt that jurisdictional stripping can succeed or has succeeded, but ultimately the legal effects have to be compliant with the Constitution. If they are not, then jurisdictional stripping would need to be preceded/accompanied by a pertinent constitutional amendment, lest the maneuver or its effects be voided as unconstitutional. Feb 16, 2019 at 20:27
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    @A.fm. I agree. From what I recall of Roe v Wade, the only hard limit to legislation of abortion is the one related to the criterion of fetus's quickening. That criterion prevents state legislatures from outlawing abortion during the first several weeks of pregnancy. Thus, any legislative initiative to overcome that limitation would necessarily require a constitutional amendment (or that the SCOTUS change its interpretation of the Constitution). Other than that, state legislatures are free to revisit the matter with ongoing enactments, as you point out. Feb 16, 2019 at 20:53

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