What is likely to be the grounds used to undo Roe v. Wade?

[CTyankee]

Help me out here. I'm confused about the doctrine of "stare decisus." Will the challenge come from other than the right to privacy?

My guess is that something cooked up on the far right wing is out there, ready to be brought to the Supreme Court, in the almost certain event that we get a solidly anti-choice judge that trump appoints.

[no_hypocrisy]

1. I'm not giving any trolls ideas by posting how to undo Roe.

[CTyankee]

4. There's plenty out there now in the form of challenges to state laws limiting or forbidding

women from getting an abortion. Their arguments are already formulated.

And I don't think Planned Parenthood, NARAL and the ACLU have not been aware of them.

[The Velveteen Ocelot]

13. Trolls aren't on the Supreme Court, which will be able to make its own reasons

without much help. It's easy: Since the right to privacy is not an enumerated constitutional right, the originalists will say it doesn't exist.

[Fozzledick]

2. Catch 22: They can do anything you can't stop them from doing.

Laws and rules don't really matter.

[WhiskeyGrinder]

3. Because the right to privacy is not explicitly enumerated in the Constitution, Roe is actually a

fairly weak case. There were efforts to get abortion addressed under the 14th amendment -- equal protection under the law -- but the case that came up was based on privacy.

[CTyankee]

5. IIRC, RBG had worried about the same thing, that she thought the 14th amendment was the

better way to go.

[The Velveteen Ocelot]

7. Exactly. The right to privacy is what's called a "penumbral" right -

one that is derived by implication from other constitutional rights. Roe was based in part on Griswold v. Connecticut, which held that contraception could not be criminalized because it was protected by an implied right to marital privacy - that the government couldn't invade people's bedrooms. The originalists on the current Supreme Court could decide that since there is no enumerated right to privacy in the Constitution, it can't be a basis for allowing abortion. I wonder what such a decision would do to Griswold? Would it also be overruled?

[CTyankee]

8. Do you think that miifepristone will also be banned?

[The Velveteen Ocelot]

11. In some states, maybe, since overturning Roe sends the whole mess back to the states.

It might be treated like medical marijuana - you can get it here but not there.

[CTyankee]

18. Could this be circumvented by women getting it over state lines through the mail?

[Mike Nelson]

6. They will say it is...

… "bad law" and not supported by the US Constitution. They will make it a state concern. Bold Republicans will next promote "Person-hood" for the fetus.

[JarOCats]

9. The First Amendment.

I know it sounds crazy, but if they can win on anti-gay discrimination, allowing "crisis pregnancy centers" to lie, and Citizens United by twisting 1A until it snaps, they'll probably find a path to undoing Roe by the same means.

My reading this morning:

How Conservatives Weaponized the First Amendment

[Voltaire2]

10. They will allow states to diminish the time frame and add barriers

The cases that are routinely overturned by the court on 5-4 votes will now routinely be upheld. The fucknutz states will deny poor women access to abortions. People in sane states will be ok. Middle class women will be able to get abortions.

[dlk]

12. They Will Merely Make Something Up Since Precedent is a Joke to Them

Republicans are utterly ruthless in pursuit of their goals in all circumstances.

[mwooldri]

14. Also gives the question...

If Roe v Wade is undone, what other legislation does it undo?

[Bettie]

15. Ultimately, they'll end up

where the rights of the unborn supersede the rights of the "incubator".

[Girard442]

16. Unfortunately the law is ultimately what the SCOTUS says it is.

The reasoning they use to justify a decision is just a garnish. The only recourse is to impeach them and replace them with judges who would reverse the ruling.

[TomSlick]

17. Stare Decisis is the foundation of Common Law jurisprudence.

It simply means stand by things decided, i.e. that subsequent cases should be decided on the same law as previous cases.

The problem is that appellate courts can and do decide to overturn precedent. Usually, they do so by determining a precedent was wrongly decided as inconsistent with earlier precedent which was the correct interpretation. In the case of Roe, the decision was premised upon the finding of a right of privacy in Griswold. Reversing Roe will undermine the right of privacy from Griswold. There is no reference to a right of privacy in the Constitution. The Court in Griswold found a right to privacy in the penumbra of specific constitutional rights. Griswold is roundly criticized by the Federalist Society and their ilk.

The right of privacy is all that prevents the government from intruding into all manner of very personal matters. If there is no constitutional right of privacy, all manner of evils are in the wind. As bad as overturning Roe would be simply because of the loss of the right of choice, the danger to the right of privacy is truly frightening.

[Ilsa]

22. The government could regulate sex between consenting adults, you mean?

The type of sex between hetetos, even, not just LGBT.

[TomSlick]

23. I think so.

Griswold dealt with Connecticut laws prohibiting contraception - clearly heterosexual. The Lawrence decision, which struck down Texas' same sex "sodomy" laws, is based on the Griswold right of privacy. In my professional life, the Uniform Code of Military Justice criminalized heterosexual "sodomy" That law is unenforceable on the basis of Lawrence. (It's still "on the books" - Article 125, UCMJ which criminalizes "unnatural carnal copulation." )

If Griswold falls, it is at least possible States could prohibit heterosexual "sodomy." Of course, Griswold concerned a State law prohibiting contraception. If Griswold is completely reversed, States could again outlaw contraception.

I do not believe that a complete reversal of Griswold is likely. Then again, I thought it impossible that Donald Trump would ever be elected President. At this point, I hesitate to confidently predict what a Supreme Court remade in Trump's image might do.

There are always ripple effects. It is difficult to see all the consequences of a reversal of Roe.

[treestar]

19. I always wondered that, as it is precedent

Overruling their own precedent would be unusual I would think.

[spanone]

20. I'm sure God is involved and it's probably in the small print in some form of the bible

[greggrose]

21. Sorites. It will come down to the...

...paradox of sorites, "a paradox that arises from vague predicates": if a heap of sand is reduced by a single grain at a time, at what exact point does it cease to be considered a heap?

https://en.wikipedia.org/wiki/Sorites_paradox