New Antiabortion Laws and the Federal Court

[mark kennedy]

A federal judge who struck down Mississippi’s 15-week abortion ban last year is hearing arguments about a new law that puts the ban even earlier. The law would prohibit most abortions once a fetal heartbeat can be detected, at about six weeks, when many women may not know they’re pregnant. (Mississippi 6-week abortion ban heads to federal court)​

There's no question that the new antiabortion laws are heading to Federal Court but aside from a reversal of Supreme Court precedence, they are likely to be found unconstitutional. So is anyone following this as a Constitutional Law issue?

The deliberate escalation by the states has led to talk that a head-on challenge to Roe could be before the justices in their next term, which opens in October and typically produces its most hard-fought decisions in the following June. That would be June 2020, weeks before the Democratic and Republican Conventions and just months before Trump and a Democratic nominee are likely to square off at the polls. (Will the Supreme Court take up a Roe v. Wade showdown in 2020? Politico)
​

This is going to be a pretty incendiary issue going into the 2020 Presidential election. For the first time in a long time I'm taking a serious look at this wondering if Roe v. Wade might be challenged in the Supreme Court. I find it highly unlikely that any of the Federal Courts will go against the Supreme Court precedence, they just don't do that and these antiabortion laws that have become so popular in red states, are going to be tried in Federal Court.

So what do you think? Do you think the prolife movement actually stands a chance here or will we just end up right back where we started?

Grace and peace,
Mark

 

[Peter J Barban]

I think we need 1 or 2 more conservative justices to reverse Roe.

Even if it is reversed, there will be civil disobedience, talk of secession, court packing, and impeaching the supreme court. Furthermore, many lower judges will ignore the ruling.

The game is never over until the left wins. We live in interesting times.

 

[hedrick]

The Federal courts have no choice. They have to follow Supreme Court precedents. So the decisions by lower courts are inevitable. It's up to the Supreme Court. I think it's hard to predict what they'll do. Roberts doesn't want the court to be known as political. Changing Rowe v Wade now and changing back in a decade or two will make it just a bit too obvious that the Court is more following current political trends than the Constitution. Roberts doesn't want to be known for a replay of Dred Scott. (I actually find a lot of parallels between that decision and the political, legal and Scriptural context of the current debate.)

I don't think we're headed for a new civil war, but I do think we're headed for a split between red and blue that's almost as serious as that time period.

 

[chevyontheriver]

A federal judge who struck down Mississippi’s 15-week abortion ban last year is hearing arguments about a new law that puts the ban even earlier. The law would prohibit most abortions once a fetal heartbeat can be detected, at about six weeks, when many women may not know they’re pregnant. (Mississippi 6-week abortion ban heads to federal court)​

There's no question that the new antiabortion laws are heading to Federal Court but aside from a reversal of Supreme Court precedence, they are likely to be found unconstitutional. So is anyone following this as a Constitutional Law issue?

The deliberate escalation by the states has led to talk that a head-on challenge to Roe could be before the justices in their next term, which opens in October and typically produces its most hard-fought decisions in the following June. That would be June 2020, weeks before the Democratic and Republican Conventions and just months before Trump and a Democratic nominee are likely to square off at the polls. (Will the Supreme Court take up a Roe v. Wade showdown in 2020? Politico)
​

This is going to be a pretty incendiary issue going into the 2020 Presidential election. For the first time in a long time I'm taking a serious look at this wondering if Roe v. Wade might be challenged in the Supreme Court. I find it highly unlikely that any of the Federal Courts will go against the Supreme Court precedence, they just don't do that and these antiabortion laws that have become so popular in red states, are going to be tried in Federal Court.

So what do you think? Do you think the prolife movement actually stands a chance here or will we just end up right back where we started?

Grace and peace,
Mark

Precedence is important, but if it were the controlling thing we would still have slavery because Dred Scott was a precedence case that should have endured based on 'stare decisis'.

What is important is the actual written constitution, and the overturning of the sloppy Roe decision will right a wrong that was both a legal wrong because it was bad law, and a moral wrong.

This will all be very incendiary. It's the stuff of civil war, and yet there isn't as much regional difference as there was with slavery. So it may end up ripping up neighborhoods all over the country. It's already getting violent, far more than even three years ago.

 

[mark kennedy]

Precedence is important, but if it were the controlling thing we would still have slavery because Dred Scott was a precedence case that should have endured based on 'stare decisis'.

What is important is the actual written constitution, and the overturning of the sloppy Roe decision will right a wrong that was both a legal wrong because it was bad law, and a moral wrong.

This will all be very incendiary. It's the stuff of civil war, and yet there isn't as much regional difference as there was with slavery. So it may end up ripping up neighborhoods all over the country. It's already getting violent, far more than even three years ago.

I agree it's going to get ugly, I don't know about civil war and unrest but this is going to wrap itself around the Presidential election and the venom of this serpent is real. I've watched helplessly as the Supreme Court dictated that abortion can happen right up until the baby is viable outside the womb, personally, I find this morally unacceptable. I've never seen the prolife movement with more momentum I just don't want it to end anticlimactically. I don't like the creative logic that makes the woman's right to chose inextricably linked to the 14th Amendment, I just think we can do better.

Maybe, just maybe, if there is a good test case Roe v. Wade can be challenged. Bear in mind this is a states rights issue as well, because the Federal government has decided they don't get to decide. The basic concept of the Federal Constitution is that:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (Tenth Amendment)​

When did we ever as the people are as states delegate this responsibility to the Federal government? The Roe v. Wade thing came about as an interpretation of the 14th Amendment that never gave any authority to decide with regards to abortion, check it out, it's right here (The 14th Amendment)

I don't see anything about abortion, so why does the Supreme Court get to dictate what is a living person and what is not? I just think we are about to see a flurry of Federal decisions setting aside state legislation that concerns me greatly, that's not even the bigger issue. What I'm not sure of is whether or not this will challenge Roe v. Wade and if so, what criteria will be used to bring about the final outcome.

I'm really not overly optimistic here.

Grace and peace,
Mark

 

[redleghunter]

Believe it or not, a pretty good run down at Vox on how the SCOTUS has handled and allowed restrictions to Roe v Wade since the decision.

https://www.vox.com/2019/5/15/18623073/roe-wade-abortion-georgia-alabama-supreme-court

On precedent? the NYTs just opined on how the court recently abandoned decades of precedent in Franchise Tax Board of California v. Hyatt:

Opinion | Supreme Court Liberals Raise Alarm Bells About Roe v. Wade

The opinion piece above asks the question if the conservative justices 'went this way' to open overturning other 'precedent.'

 

[GodLovesCats]

The most popular opinion now by law experts is none of the legal challenges will be heard by the SCOTUS before the next Presidential election. Furthermore, there is no guarantee Chief Justice John Roberts wants to hear any of them because overturning Roe vs. Wade would change an existing precedent. This really is not as simple as red states think. Also keep in mind RvW was a 7-2 decision and not all judges who voted in Jane Roe's favor were liberals. Therefore, assuming all five conservative justices will vote for red states would be a mistake.

 

[redleghunter]

I agree it's going to get ugly, I don't know about civil war and unrest but this is going to wrap itself around the Presidential election and the venom of this serpent is real. I've watched helplessly as the Supreme Court dictated that abortion can happen right up until the baby is viable outside the womb, personally, I find this morally unacceptable. I've never seen the prolife movement with more momentum I just don't want it to end anticlimactically. I don't like the creative logic that makes the woman's right to chose inextricably linked to the 14th Amendment, I just think we can do better.

Maybe, just maybe, if there is a good test case Roe v. Wade can be challenged. Bear in mind this is a states rights issue as well, because the Federal government has decided they don't get to decide. The basic concept of the Federal Constitution is that:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (Tenth Amendment)​

When did we ever as the people are as states delegate this responsibility to the Federal government? The Roe v. Wade thing came about as an interpretation of the 14th Amendment that never gave any authority to decide with regards to abortion, check it out, it's right here (The 14th Amendment)

I don't see anything about abortion, so why does the Supreme Court get to dictate what is a living person and what is not? I just think we are about to see a flurry of Federal decisions setting aside state legislation that concerns me greatly, that's not even the bigger issue. What I'm not sure of is whether or not this will challenge Roe v. Wade and if so, what criteria will be used to bring about the final outcome.

I'm really not overly optimistic here.

Grace and peace,
Mark

As the 14th Amendment states "nor shall any state deprive any person of life, liberty, or property, without due process of law..." which is why the pro-abortion lobby is adamant to have us ignore the biological fact of human life beginning at conception. They know this made up term "human personhood" is all that prevents the SCOTUS from striking down Roe as Dredd hit the ash heap of overturned 'precedence.'

 

[mark kennedy]

As the 14th Amendment states "nor shall any state deprive any person of life, liberty, or property, without due process of law..." which is why the pro-abortion lobby is adamant to have us ignore the biological fact of human life beginning at conception. They know this made up term "human personhood" is all that prevents the SCOTUS from striking down Roe as Dredd hit the ash heap of overturned 'precedence.'

They are not going from the baby must be viable outside the womb to life begins at conception, that much I'm sure of. Proposition 8 was sent back to the lower courts because the Supreme Court could find no question for them to address, soundly defeating the law once and for all. The issue was the definition of marriage just like the issue here is the definition of personhood. These are cultural issues but the Supreme Court has decided that it alone gets to define what a person or a marriage is, not the states. The culture wars have ended and the liberal revolution continues with liberals on top, daring someone to actually challenge them. Well they are being challenged I just wonder if a simple conservative majority on the bench is sufficient.

 

[GodLovesCats]

All it takes is a simple majority on the bench - if the SCOTUS hears any of the challenges. But with all the laws being challenged, how can they strike all of them down?

 

[mark kennedy]

All it takes is a simple majority on the bench - if the SCOTUS hears any of the challenges. But with all the laws being challenged, how can they strike all of them down?

My guess is the Federal Courts will do that, the real question is which one is going to keep getting appealed. If there is no clear question here they could refuse to hear it and considering this would make it to the Supreme Court right in the apex of a Presidential election just adds to the drama. They are going to have to pick one case they think includes the merits and issues of all of them, like I've been saying, choose your test case wisely.

 

[GodLovesCats]

There are federal courts all over the United States so cases can be challenged for several abortion laws at the same time.

 

[chevyontheriver]

All it takes is a simple majority on the bench - if the SCOTUS hears any of the challenges. But with all the laws being challenged, how can they strike all of them down?

They can combine similar legal challenges if they so decide. Or address exactly what they want to and leave the rest. Or decline to hear any of it. Stay tuned.

 

[GodLovesCats]

If they only hear one, it better be the Alabama law. It does not give any girls and women a chance to get an ultrasound test and find out they are pregnant because that can't be done in only 7-10 days.

 

[mark kennedy]

If they only hear one, it better be the Alabama law. It does not give any girls and women a chance to get an ultrasound test and find out they are pregnant because that can't be done in only 7-10 days.

The prolife movement really doesn't want the Alabama case, it's too extreme and has a low likelihood of reversing the Supreme Court precedence. These things develop over time and this would be a challenge for any Constitutional lawyer, and this one is uncharted territory for all concerned. The idea that the Supreme Court is going to jump from late in the third trimester to early sometime in the first seems like fantasy to me.

 

[hedrick]

This is an interesting game. Previously, states had been trying to make abortion difficult by adding unjustified restrictions that could (if you kept your eyes closed) be considered to be protection of health, and not overt prohibition of abortion. The Supreme Court could avoid those cases, and allow abortion to become more and more difficult.

but the new laws mean that if they're not going to overrule Rowe completely, they're going to have to draw a line. That could actually backfire on the conservative states.

It's always hard to guess how they're going to rule in a case like this. Kavanaugh during confirmation said that Rowe v Wade was settled law. There's a reasonable chance that he was only confirmed because of that. Did he mean it? We'll see.

 

[GodLovesCats]

The prolife movement really doesn't want the Alabama case, it's too extreme and has a low likelihood of reversing the Supreme Court precedence. These things develop over time and this would be a challenge for any Constitutional lawyer, and this one is uncharted territory for all concerned. The idea that the Supreme Court is going to jump from late in the third trimester to early sometime in the first seems like fantasy to me.

Even Donald Trump said he hates the Alabama law in his tweet that begins, "I am Srongly Pro-life." So he (the same man who nominated two conservative judges with Roe vs. Wade in mind) wants that law to be struck down in federal courts. That is significant considering Trump promised to nominate judges who are opposed to the RvW ruling in 2016.

The SCOTUS ruled abortions are illegal from the start of the third trimester. It is a stretch to go from that to early in the first, but maybe 24 weeks would be supported.

This is an interesting game. Previously, states had been trying to make abortion difficult by adding unjustified restrictions that could (if you kept your eyes closed) be considered to be protection of health, and not overt prohibition of abortion. The Supreme Court could avoid those cases, and allow abortion to become more and more difficult.

But the new laws mean that if they're not going to overrule Rowe completely, they're going to have to draw a line. That could actually backfire on the conservative states.

It's always hard to guess how they're going to rule in a case like this. Kavanaugh during confirmation said that Rowe v Wade was settled law. There's a reasonable chance that he was only confirmed because of that. Did he mean it? We'll see.

First of all, the woman's legal pseudonym was Roe, not Rowe.

Would the courts play a mix and match game to rule this clause is legal but that clause is not for different state laws? Example: Accept Missouri's 10-15 years in prison, but require exceptions for rape and incest - which Missouri's law does not have, but others do.

 

[GodLovesCats]

Does anyone know a good lawsuit tracker website that does not require downloads?

 

[GodLovesCats]

It finally happened: Federal lawsuit filed to block Alabama's new abortion ban

 

[hedrick]

Of course. Presumably everyone expected that. Only the Supreme Court can reverse Roe v Wade. To get there, there has to be a case to appeal.