Calling all lawyers on this site!

[Boss Doctor]

How likely is it that Roe v Wade could ever be overturned? What would have to happen to do this?

 

Yes, I seriously want to know.

[mywickedshelby]

Im no attorney, but if Bush and his appointments to the Supreme Court couldnt get it done, I dont see it ever happening.

 

JMHO.

[SLB8SNK]

How likely is it that Roe v Wade could ever be overturned? What would have to happen to do this?

 

Yes, I seriously want to know.

It will never happen. The fundamental issues, as a whole, will never allow for a clear cut clean decision to be made or altered.

[mciarochi]

er, I'm not a lawyer, but I know how that works. Also, I don't really know specifics about Roe v Wade states (just vaguely what it is about), which is the case with probably 999 out of 1000 people in the US. However, it doesn't matter, the process is the same.

 

IF, and that's a big IF, somebody challenged some practice that was based on Roe v Wade in some court, they would lose (because there's a SC precedent on the matter). They could then appeal the case to the next higher court. IF, and that's a huge IF, the higher court decided to hear the appeal it would lose. If it was denied on a point of law as opposed to a technicality, it could go to an appeals court. IF, and now we're talking a humongous IF, the appeals court decided to hear it, ya da ya da ya da.

 

Then, after they lose in the appeals court, they can petition the Supreme court. Now, we are talking about challenging a previous ruling of the court. The sitting court may or may not take the case. They may decide something like, "been there done that, got the t-shirt" and not hear arguments. They may decide, "damn, that will piss off too many people" and not hear arguments. They may decide, "let's put this to bed once and for all" and let the lawyers on both sides present the case again, this time with the context of some history behind the previous judgement.

 

Very rare for the supremes to even hear a case that challenges a previous court's ruling, but it has happened.

 

I would think that the only way this could even make it to the court is if the entire political climate of the country changed toward a more constitutional view of government, with most government power invested locally, then statewide, and the least power over individuals at the federal level. This was the case when the constitution was written.

 

Since then, with increasing speed after the civil war, and dramatically in the 20th century, power has shifted in the other direction, so that the federal government now has the most power, and your poor mayor has the least.

 

Whether or not you like the shift is not the point here. The point is that so long as the consensus supports the ever-increasing concentration of power in Washington DC (which has been the case through both Democratic and Republican regimes), so too will the decisions of the court.

 

That would make it extremely unlikely for any previous ruling of the court to be overruled in favor of a more conservative (or "less federal" may be a better phrase) ruling.

 

[edit: just cleaned up]

[jaydub Mach1]

Well, I'm not a lawyer, either. I don't even play one on TV!!!

 

However, from a legal standpoint, if Roe v. Wade is overturned, the decision then reverts back to the individual states.

 

Of course, the main discussion around Roe v. Wade is about a women's right to choose. However, other aspects that are discussed include states' rights versus federal laws. When should a decision be at the federal level and when should it be left up to the states.

 

Some want strong states and a weak federal government in areas like this. Others want the opposite.

 

I'm not advocating one way or the other, just that if it is overturned, it doesn't mean that abortions are now all illegal. It means that it goes back to the states to decide.

 

Disclaimer..... At least that's my understanding of the situation...

[mywickedshelby]

I believe you are correct jaydub.

[mciarochi]

I believe you are correct jaydub.

That's the way I see it, too. That's why I said it's very unlikely, because that would be a tidal shift in government, to put power back in the hands of the states (which is where it was before the decision).

 

Pretty much everything has gone the other way for a long time. I don't see that trend changing any time soon.

[Boss Doctor]

I agree that it would be extremely unlikely, but I'd still like the lawyers' interpretations of the question: however, what has been posted brings up the next question:

 

Why all the drama?

 

Those on the left are afraid it'll be overturned by someone like Palin, and those on the right want it to be overturned. It seems to me both are either delusional or uneducated. Comments?

[ShelbyDude]

I agree that it would be extremely unlikely, but I'd still like the lawyers' interpretations of the question: however, what has been posted brings up the next question:

 

Why all the drama?

 

Those on the left are afraid it'll be overturned by someone like Palin, and those on the right want it to be overturned. It seems to me both are either delusional or uneducated. Comments?

 

 

The purpose would be to take power away from the feds that they should have never had and return the power back to the States where it belongs! LESS government!

[jaydub Mach1]

Well, of course, Palin, as VP can't overturn the decision. Neither can a President. Only a Supreme Court decision can.

 

As I understand it, a case has to make its way up through the system and be presented to the US Supreme Court that challanges the constitutionality Roe v. Wade, since the Supreme Court only hears cases where an interpretation of the US Constitution is involved

 

And since the Court chooses which cases they want to hear and which ones they don't, they'd have to agree to hear the case.

 

Much of what we hear in the news is fluff. Yes, the President does nominate replacements for members of The Court that retire. However, they have to be approved by Congress; as a check and balance.

[ShelbyDude]

Well, of course, Palin, as VP can't overturn the decision. Neither can a President. Only a Supreme Court decision can.

 

As I understand it, a case has to make its way up through the system and be presented to the US Supreme Court that challanges the constitutionality Roe v. Wade, since the Supreme Court only hears cases where an interpretation of the US Constitution is involved

 

And since the Court chooses which cases they want to hear and which ones they don't, they'd have to agree to hear the case.

 

Much of what we hear in the news is fluff. Yes, the President does nominate replacements for members of The Court that retire. However, they have to be approved by Congress; as a check and balance.

 

 

After this coming Tuesday you might be taking any check and balance left and tossing that out the window! A runaway congress will side with whatever their messiah wants and asks for! GUARANTEE IT!!!

[Boss Doctor]

The purpose would be to take power away from the feds that they should have never had and return the power back to the States where it belongs! LESS government!

 

With respect, I didn't ask about the purpose.

[Bob Knudsen]

It is certainly a possibility. It has come very close to being overturned at least once in its history.

 

If it is overturned, the changes might not be as dramatic as one would think. If Roe is overturned, the states will be allowed to make their own rules on abortion. Some states will likely ban it, others will permit it.

 

Roe is vulnerable because it is more of a political issue than a legal issue. Roe is based on a "right of privacy" in the U.S. Constitution. However, the U.S. Constitution contains no such provision. The Roe court implied the right, and thus it is on much thinner grounds than free speech or other rights that are expressly set forth in the Constitution or its amendments.

 

As a lawyer, I have always believed that Roe was wrongly decided as a matter of constitutional law. I am also personally opposed to abortion (when I was 19 and my girlfriend became pregnant, we married and I now have a 26 year old son).

 

However, the fact is that their will always be unplanned and unwanted pregnancies, and there will be abortions. With Roe, there is a guarantee that a woman can obtain an abortion performed by a doctor with minimal risk to her health. Without Roe, abortions would be obtainable in some places but not others.

 

Personally. I would rather than a frightened 18 year old girl with an unplanned pregnancy not have an abortion. However, I recognize that some will, whether it is "legal" under Roe or "illegal" because Roe has been banned. If an 18 year old girl is set on having an abortion, she will have one, legal or not. If she is going to have one I would much rather she have it in a clinic performed by a doctor than in hotel performed with a coat hanger.

 

As a political issue I believe Roe is best just left alone as we are not going to prevent abortions, and since we cannot prevent them lets not endanger the lives of the women who will insist on them whether they are legal or not.

[ShelbyDude]

With respect, I didn't ask about the purpose.

 

 

"Why all the drama?

 

Those on the left are afraid it'll be overturned by someone like Palin, and those on the right want it to be overturned. It seems to me both are either delusional or uneducated. Comments?"

 

 

That is what I responded to. So change "purpose" to, "This is why all the drama"...

 

[Boss Doctor]

It is certainly a possibility. It has come very close to being overturned at least once in its history.

 

If it is overturned, the changes might not be as dramatic as one would think. If Roe is overturned, the states will be allowed to make their own rules on abortion. Some states will likely ban it, others will permit it.

 

Roe is vulnerable because it is more of a political issue than a legal issue. Roe is based on a "right of privacy" in the U.S. Constitution. However, the U.S. Constitution contains no such provision. The Roe court implied the right, and thus it is on much thinner grounds than free speech or other rights that are expressly set forth in the Constitution or its amendments.

 

As a lawyer, I have always believed that Roe was wrongly decided as a matter of constitutional law. I am also personally opposed to abortion (when I was 19 and my girlfriend became pregnant, we married and I now have a 26 year old son).

 

However, the fact is that their will always be unplanned and unwanted pregnancies, and there will be abortions. With Roe, there is a guarantee that a woman can obtain an abortion performed by a doctor with minimal risk to her health. Without Roe, abortions would be obtainable in some places but not others.

 

Personally. I would rather than a frightened 18 year old girl with an unplanned pregnancy not have an abortion. However, I recognize that some will, whether it is "legal" under Roe or "illegal" because Roe has been banned. If an 18 year old girl is set on having an abortion, she will have one, legal or not. If she is going to have one I would much rather she have it in a clinic performed by a doctor than in hotel performed with a coat hanger.

 

As a political issue I believe Roe is best just left alone as we are not going to prevent abortions, and since we cannot prevent them lets not endanger the lives of the women who will insist on them whether they are legal or not.

 

Thanks for sharing, Bob. I also do not believe abortion was the proper choice for my wife and I when we were 17 & 18 respectively. We now have a 29 year old daughter and three grandchildren because of our "choice" that was made. Even though abortion wasn't our choice, I don't hold it against the person who does choose it, and I sure as hell don't want anyone turning to a coat hanger because of the law.

 

Do any other lawyers either concur or disagree with Bob's assessment?

[Boss Doctor]

Well, of course, Palin, as VP can't overturn the decision. Neither can a President. Only a Supreme Court decision can.

 

As I understand it, a case has to make its way up through the system and be presented to the US Supreme Court that challanges the constitutionality Roe v. Wade, since the Supreme Court only hears cases where an interpretation of the US Constitution is involved

 

And since the Court chooses which cases they want to hear and which ones they don't, they'd have to agree to hear the case.

 

Much of what we hear in the news is fluff. Yes, the President does nominate replacements for members of The Court that retire. However, they have to be approved by Congress; as a check and balance.

 

I was talking about someone like Palin being in office as president; not Palin as a VP. Some of the objections over Palin that I've seen from the left is their assumption that she will force her beliefs on them should McCain die and she assumes the Presidency. To me it's an unreasonable assumption.

[Boss Doctor]

"Why all the drama?

 

Those on the left are afraid it'll be overturned by someone like Palin, and those on the right want it to be overturned. It seems to me both are either delusional or uneducated. Comments?"

 

 

That is what I responded to. So change "purpose" to, "This is why all the drama"...

 

 

I understand the purpose for wanting it to change. My question was to: If it ain't likely to happen, why all the concern to begin with? To me it's a non-issue. To others it's a major issue.

[ShelbyDude]

I was talking about someone like Palin being in office as president; not Palin as a VP. Some of the objections over Palin that I've seen from the left is their assumption that she will force her beliefs on them should McCain die and she assumes the Presidency. To me it's an unreasonable assumption.

 

 

The false assumption some people have about Palin wanting to FORCE HER BELIEFS on people is just BS rehtoric that came from the media in the tank for Obama.

 

Palin has made it perfectly clear that her personal beliefs will differ from others and she has no intentions of pushing or forcing her personal beliefs onto others.

 

Obama is the opposite. Obama expects everyone to believe what he believes and whether they do or not, he will force his beliefs on them if he has any choice in the matter!

[jaydub Mach1]

After this coming Tuesday you might be taking any check and balance left and tossing that out the window! A runaway congress will side with whatever their messiah wants and asks for! GUARANTEE IT!!!

 

Hate to disagree. But, none other than Nancy Pelosi herself states we don't have to be afraid of dem control. In, fact she said Congress will be MORE bi-partisian with total dem control.

 

Of course, she also said that this congress will be the most ethical. I mean their approval ratings ARE in single digits. They make Bush's ratings look spectacular!!

 

http://abclocal.go.com/kgo/story?section=n...&id=6473426

 

Ok..ok Sarcasim off!

 

Apologies for hijacking the thread.....

[jaydub Mach1]

I was talking about someone like Palin being in office as president; not Palin as a VP. Some of the objections over Palin that I've seen from the left is their assumption that she will force her beliefs on them should McCain die and she assumes the Presidency. To me it's an unreasonable assumption.

 

Thus the difference between facts AND what is in the agenda driven, partisian Media.

 

The two shall never meet!

 

It really is AMAZING how often they are wrong on things.

[mciarochi]

Roe is vulnerable because it is more of a political issue than a legal issue. Roe is based on a "right of privacy" in the U.S. Constitution. However, the U.S. Constitution contains no such provision. The Roe court implied the right, and thus it is on much thinner grounds than free speech or other rights that are expressly set forth in the Constitution or its amendments.

Thanks for the clarification, Bob. That's why I disclaimed any detailed knowledge of the actual case, because I really don't (or didn't) know why it was legally controversial (yes, I know why it is morally controversial, but that's a different issue).

 

My understanding is that the original framers of the constitution intended the document to define the federal government with the intent that rights to govern that were not explicitly defined simply did not exist, and that human rights were inalienable and granted by God, not the government. Any rights to govern not explicitly granted to the fed was reserved to the states.

 

I believe the Bill of Rights was hotly contested at the time because it did in fact define certain human rights, and as such opened up the potential to argue that because certain human rights were in fact "granted" by the government via the Constitution, then other rights could be implied (such as the right to privacy that you mention) or simply did not exist (again, the same right to privacy). Any way you looked at it, it granted the right to the government to legislate and rule on certain things that otherwise were out of it's jurisdiction.

 

Correct me if I'm wrong.

 

I do hope this thread doesn't head off into the weeds.

[Bob Knudsen]

All that stands between Roe and it being overturned is 5 votes on the Supreme Court. Where it becomes more complex is when you have a Supreme Court Justice who believes Roe was wrongly decided in the first instance but also believes that it is firmly entrenched in U.S. law. If that is the case, there are two competing principles. One principle is get it right. The other principal (stare decisis) is that prior decisions (precedent) are to be followed, and are generally not to be overturned or changed. This is not to say that they can never be overturned, but it is not something done lightly, and a even Justice who would have voted against Roe if they were on the Court in 1973 might not vote to overturn it.

 

We experienced that fairly recently with Miranda rights. If Miranda were to be decided in the first instance today in front of the current court composition it might be decided differently. However, in deciding whether or not to reconsider Miranda, Justices who might disagree with it voted not to overturn it as it is so entrenched in our society.

 

I do think Roe is more at risk of being overturned or at least restricted in application as it is such a political issue.

 

Another point to consider is that Supreme Court Justices are unpredictable. When Judges are on lower courts we never really know for sure what they truly believe, because they may be saying it because they truly believe it and they may be saying it because it is politically expedient for them to do so and because they must answer to a higher authority. Supreme Court Justices are appointed for life, and there is no higher authority on the law in the U.S., so many Justices do not show their true colors until they are on the Supreme Court.

 

Harry Blackmun, who wrote the Roe decisions, was appointed to the Federal appeals court by Ike and to the U.S. Supreme Court by Nixon. He was a Republican when appointed, and yet his true colors when they came through on the court showed him to be what most would considert to be extremely liberal when it came to the death penalty, abortion, and laws relating to gays/lesbian. His rulings in his later years would be considered much more in line with "Liberal Democrat" than "Conservative Republican".

 

Based on his rulings and his expressed views prior to appointment, it is unlikely that Blackmun ever would have been appointed by a Democrat president, even though his rulings on the Court were more Democrat than Republican. Nixon was appalled at Blackmun's rulings and regretted the appointment.

 

I say the above neither to express disagreement nor agreement with Justice Blackmun's rulings, merely to point out that he surprised many people with his ultimate views, including the people who lobbied for his appointment.

 

The point is that you simply do not know exactly what you are getting when a Supreme Court Justice is appointed.

[Bob Knudsen]

Another point for those of us in CA: Although the U.S Constitution is silent with refard to a right of privacy, the California constitution expressly contains a right to privacy. Article 1, Section 1 of the California constitution provides:

 

SECTION 1. All people are by nature free and independent and have

inalienable rights. Among these are enjoying and defending life and

liberty, acquiring, possessing, and protecting property, and pursuing

and obtaining safety, happiness, and privacy.

 

Whether or not courts should imply rights not expressly set forth in the constitution, or leave those rights (or the lack thereof) to the legislature or the states is an issue that constitutional scholars have disagreed on for a long time.

 

The "States Rights" issue is a difficult one as well. States have long used the "States Rights" arguments to attempt to prevent the Federal Government or Federal Courts from imposing their will on a State. Unfortunately, when left to their own devices, some states had really bad laws that they attempted to defend under the concept of "States Rights".

 

I am a real estate lawyer, and I will occasionally come across old deeds in title searches that have restrictive covenants that restrict ownership to whites. These were enforced years ago under the doctrine of "States Rights", i.e. that the Federal Government had no say in the matter as it was left to the States. Obviously, they are not enforceable now, but that was because of the Federal Court System. States Rights has a sullied reputation in some respects because some states did some pretty reprehensible things under the guise of states rights.

[USBlueStage2]

The most serious challenge to Roe came in 1992 in Planned Parenthood v. Casey, 505 U.S. 833 (1992):

 

Its difficult to follow the plurality, but the opinion of the court was delivered as follows:

 

Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, *844 V-C, and VI, an opinion with respect to Part V-E, in which Justice STEVENS joins, and an opinion with respect to Parts IV, V-B, and V-D.

 

"Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe."

 

Roe was not overruled then, and there is nothing in the pipeline that looks to challenge it now or in the immediate future.

[Boss Doctor]

The most serious challenge to Roe came in 1992 in Planned Parenthood v. Casey, 505 U.S. 833 (1992):

 

Its difficult to follow the plurality, but the opinion of the court was delivered as follows:

 

Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, *844 V-C, and VI, an opinion with respect to Part V-E, in which Justice STEVENS joins, and an opinion with respect to Parts IV, V-B, and V-D.

 

"Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe."

 

Roe was not overruled then, and there is nothing in the pipeline that looks to challenge it now or in the immediate future.

 

Ok, you said early term (stages). Does it also apply to late term?

[clark17357]

Bob Knudsen provides an appropriate overview of Roe v. Wade. California, where Bob and I dwell and toil, is a state that already has on its books legislation that provides a right to abortion even if Roe v. Wade is overturned at the Federal level. Law students take Constitutional Law in their first year of studies. Roe v. Wade was decided before I started law school in 1975 so we talked about it in Con Law. Our professor was not a political person and criticized the decision for not having any real Constitutional underpinnings. You have to remember that he was spending a year of his life trying to teach us just how it is that the United States Supreme Court approached an issue in the first place, how it made decisions and why the process was deserving of the highest degree of respect. He saw Roe v. Wade as being an inferior work product of the Supreme Court and, as such, being something that the Supreme Court should strive to avoid in the future.

 

A full understanding of Roe v. Wade may not be possible without a legal education and I do not mean that in any mean spirited way (for instance, SnakeDoctor has been kind enough, in PMs, to walk me through some of the medical issues I have addressed to him). If you are inclined to seek out the essence of the case, you should read it. Here it is for those of you so inclined: http://caselaw.lp.findlaw.com/scripts/getc...10&page=113

 

It is because Roe v. Wade was not the Supreme Court's finest work product that it is vulnerable. How vulnerable remains to be seen. And, as Bob says, in the end, the Constitution is what five Justices say it is on any given date.

 

Jim

[Michael Morris]

60 minutes had a great interview with Justice Scalia. Leslie S asked him about Roe and would he overturn it he he has the chance. He said he would, but not because he thinks abortion is right or wrong, but that the constution doesnt say anything about it. It thinks if your going to make an law you should do it the correct way and let people vote on it, not let a judge decide.

 

Heres a link to the interview. Yall should watch it. Its real good

 

 

MM

 

http://www.cbsnews.com/stories/2008/04/24/...in4040290.shtml

[Boss Doctor]

Thanks to everyone for their feedback. I appreciate it very much.