If Trump gets in, will Roe vs Wade be repealed?

[PhilSwagielka]

I admit I find US politics hard to get my head round, but because of Amy Coney Barrett's nomination, and Trump wanting to appeal to the fundie Christian crowd, I'm worried about the possibility of this happening. Can he do it?

It won't be repealed as it's case law not statute. The decision might be overturned by the Supreme Court but judicial precedent (stare decisis) will apply.

This principle applies in Scots Law so that essentially once a principle has been established by the country's Supreme Court that principle should stand for other cases having the same facts.

As I understand Roe -v- Wade it applied a principle from the US constitution so precedent might make it difficult to overturn.

Not so sure about the legalities but you’d certainly think so if you listened to the Democrats. If it was repealed it would just revert to how it was with the individual states to decide which would obviously vary massively. Roe v Wade was supposed to put it on a Federal footing but even then the implementation varies massively. They might not be able to stop it but can make it enormously difficult. Like only having one or too medical facilities in a state of several million people

So does that mean it would then be up to each individual State and whoever was president couldn't affect the State's decision?

The President can't "repeal" Roe v. Wade. It was a Supreme Court decision that the US constitution gave women the right. That can only be changed by a constitutional amendment or by another Supreme Court decision overturning their previous one.

Amy Coney Barrett hasn't just been nominated to the Supreme Court, she's been confirmed by the Senate. She's on. Whoever wins the presidency the make up of the Supreme Court is set for the moment. So the chances of a decision that removes or chips away at that right is a distinct possibility and just as likely irrespective of who becomes president.

If Trump wins and another pro-choice judge leaves the court, Trump would likely put an anti-abortion judge in their place making it more likely rulings will not uphold women's rights. If Biden gets in and an anti-abortion judge leaves he will likely put a pro-choice judge in, swinging the court back towards abortion rights. Biden has also talked a little (and, I think, somewhat reluctantly) about potentially reforming the supreme court so that the current swing from one side to another by individual nominations was less pronounced. This could be good for the Supreme court in terms of depoliticising appointments a bit, but also make it harder for rulings to be consistent.

Essentially, overturning roe v Wade doesn't outlaw abortion, it just makes it easier for individual states to make it much harder to get one. Individual states can retain current abortion regulations, but it would mean some hardcore states are able to essentially make it illegal whereas now they can't.

This is quite a good article -

www.nytimes.com/interactive/2020/10/15/upshot/what-happens-if-roe-is-overturned.html

@SheepandCow

So does that mean it would then be up to each individual State and whoever was president couldn't affect the State's decision?

For the most part. But potentially the court could decide that fetuses have rights and make it illegal in any State. And if the Supreme Court say it's not against the constitution but fetuses don't have rights it means Congress could make a law making it illegal federally, which they can't at the moment. Unlikely while the Democrats hold the House so convincingly, but if the Republicans ever get all three (House, Senate, Presidency, as they had at the start of Trumps' term) it's a distinct possibility.

Thanks for the explanations.

The amount of time effort energy etc put into trying to block women accessing abortion in the USA is a bit bonkers if you stop to think about it, isn't it?

I get that there are strong feelings etc but the country still has the death penalty, issues with maternal mortality, issues with the police around their tendency to kill black people/ people with MH issues, mass shootings, gang issues, massive death rate due to prescription opiates, huge prison population etc etc and so on.

Why this immense constant focus on wombs? Is it partly a proxy for something else/ a wider belief system... Or something?

@NiceGerbil

The amount of time effort energy etc put into trying to block women accessing abortion in the USA is a bit bonkers if you stop to think about it, isn't it?

I get that there are strong feelings etc but the country still has the death penalty, issues with maternal mortality, issues with the police around their tendency to kill black people/ people with MH issues, mass shootings, gang issues, massive death rate due to prescription opiates, huge prison population etc etc and so on.

Why this immense constant focus on wombs? Is it partly a proxy for something else/ a wider belief system... Or something?

Yes, it's a proxy for something else.

The religious right weren't universally opposed to abortion back in the 49s, 59s etc. Once they realized they had lost the civil rights fight they deliberately chose (and I mean deliberately in the sense of sat down as a committee and talked about it) chose abortion as a rallying point to keep their political constituency together. There are some interesting articles on it. I'll see if I can find one when I have a few minutes at my laptop.

Re-reading my lat post I can see typing on my phone was even less successful than usual. Sorry. But I'm sure you get the gist of it.

Here's an article that goes into more detail on why abortion became the rallying cry for the right. It's also worth mentioning that support of abortion rights wasn't a Democratic rallying cry until recently either. It didn't use to be a particularly partisan issue.

The amount of time effort energy etc put into trying to block women accessing abortion in the USA is a bit bonkers if you stop to think about it, isn't it?

Yes - particularly as many don’t seem to give a shit about the foetus and it’s welfare once it is actually born.

Looking at you Poland too.