united-states constitutional-law us-constitution us-supreme-court abortion
Could the Supreme Court prohibit abortion? (And other misconceptions about overturning Roe v Wade)
<p>Here's my layman's understanding of Roe v Wade:</p>

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

<p>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.</p>

<p>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.)</p>

<p><strong>But could a future Supreme Court not only overturn Roe v Wade, but also find that abortion is <em>prohibited</em> 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?</strong></p>

<p>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.</p>

<p>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 <a href="https://en.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Court_decisions" rel="nofollow noreferrer">these cases</a>. 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.</p>

<p>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 "<a href="https://en.wikipedia.org/wiki/Worcester_v._Georgia" rel="nofollow noreferrer">they have made their decision; now let them enforce it</a>".</p>

<p>Decades ago, existing state death penalty laws were <a href="https://en.wikipedia.org/wiki/Furman_v._Georgia" rel="nofollow noreferrer">declared unconstitutional</a> 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 <em>en masse</em>, 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 <a href="https://caselaw.findlaw.com/us-supreme-court/410/113.html" rel="nofollow noreferrer">Roe v. Wade</a>:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>A model for how this might take place is <a href="https://en.wikipedia.org/wiki/McCleary_v._Washington" rel="nofollow noreferrer">McCleary v.Washington</a>, 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. </p>

<p>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.</p>
