How Quickly Should We Overturn Roe?


#1

Welcome to the Kavanaugh Confirmation edition of the Roe v Wade discussion!

Here’s the question: Is it best to overturn Roe v Wade all at once, or to make piecemeal progress over time? I ask because with Kavanaugh’s pending confirmation hearings to SCOTUS (US Supreme Court), there is much discussion about the potential ability to overturn Roe outright. So, if the court has the ability to overturn Roe completely, should it?

About two months ago, I encountered an opinion over at the CatholicMatch.com forums arguing that the process of overturning ought to be slow. I was quite struck by this opinion, as it was something that I hadn’t considered before. After thinking over it for a bit, I found it compelling: Let’s say that SCOTUS overturned Roe tomorrow. That decision would be overturned the next time that there was a liberal majority on the court, period. We would then probably enter a period where the decision would be overturned over and over again. Eventually, moderates would lose interest in the debate, and a decision would be reached that would be stable for a long period. Given the relatively long status quo of legal abortion, odds are that the stable decision would be pro-choice. Therefore, I rationalize that this battle is not one for control over the law, so much as a fight for hearts and minds. Overturning Roe, in this paradigm, would be a foregone conclusion once society changes enough that it regards abortion as inherently immoral given secular premises, rather than religious. I make quite a few assumptions in this paragraph, but I think that it’s likely accurate in the broad strokes.

I’m not looking for an argument so much as maybe some references to authoritative magisterium on this specific topic, rather than to the morality of abortion broadly. I’ve been Googling, but can’t find any guidance. Unfortunately, I think that I’m too new of a user to post in the “Ask an Apologist” category.

Thanks in advance for your help!

Kris


#2

http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20090711_aborto-procurato_en.html


#3

The Supreme Court doesn’t like to switch back and forth on issues, its supposed to be a judicial not a legislative body.

Instead, if they do reverse Roe, it will be done in steps. They like to make narrow decisions.


#4

@Vico: Thanks for the link. I read through it, and noted that it was mostly regarding the general morality of abortion, rather than my question in particular. Can you provide guidance about how quickly Roe ought to be overturned?

@Augustinian: Thanks for the insight. I agree that it is likely that it will occur this way. But, what about the morality of doing it quickly vs slowly?


#6

Please note, I do not disagree with Church teaching on abortion; I fully assent to her magisterium.

Much agreed. I am not against privacy, nor am I against liberty and choice in general. So, I don’t want to strike those down. However, no one has a right to privacy to commit murder. No one has a right to liberty to commit murder. No, we throw people who commit murder in jail, thus depriving them of their liberty and a good deal of their privacy. The right to life is of a higher priority than the right to liberty.

Nonetheless, I’m most interested in the morality of going slow. Is it permissable from a moral perspective to advocate for that?


#7

It never should have been made law in the first place. I switched to the Republican party back in 73 because of Roe.

Bishop Thomas Tobin: Why I Switched to the Republican Party

to your question SCOTUS should hear the case and overturn Roe immediately


#9

I don’t know that if it were overturned now, a liberal Supreme Court would overturn it again. Even Ginsberg doesn’t believe the Roe v Wade decision is rooted in basic constitutional law, more or less saying that a better consensus may have been reached had things been allowed to have naturally been worked out.


#10

Interesting.


#11

I have heard that Roe verse Wade was bad law because it used a precedent of privacy in a stretched and irrational way to find for abortion.

Could someone explain that to me please?


#12

Why would one wait? Within the first is a link to Donum VItae which states:

The civil legislation of many states confers an undue legitimation upon certain practices in the eyes of many today; it is seen to be incapable of guaranteeing that morality which is in conformity with the natural exigencies of the human person and with the “unwritten laws” etched by the Creator upon the human heart. All men of good will must commit themselves, particularly within their professional field and in the exercise of their civil rights, to ensuring the reform of morally unacceptable civil laws and the correction of illicit practices. In addition, “conscientious objection” vis-à-vis such laws must be supported and recognized. A movement of passive resistance to the legitimation of practices contrary to human life and dignity is beginning to make an ever sharper impression upon the moral conscience of many, especially among specialists in the biomedical sciences.


#13

Hear WHAT “case?” The Supreme Court doesn’t just get up in the morning and decide to re-review a prior decision on its own. A case needs to work its way through the court system, be appealed up to the SCOTUS level, the SCOTUS has to decide to hear it, and may - or may not, as in the recent “cake” decision - make a narrow ruling on a point of law or procedure instead of overturning an entire prior ruling. The media are running around with their hair on fire as though a Justice Kavanaugh will gather 4 other justices around one day and say,“OK, let’s overturn Roe, them go out for Danish.”


#14

What @Mattapoisett64 said.

Also, I am assuming that by “overturn Row v. Wade” @kkerwin1 really means “make abortion illegal” (correct me if i am wrong). Overturning it will just means the Fed Govt will no longer force each State to have legal abortion. the debate will then be at each of the 50 States level where they will be free to have legal abortion or not.


#15

It may be decades or never at all. This issue is too good to be permanently get rid of for both sides. They need it to feed their respective bases. It’s like Pandora’s Box combined with Alice in Wonderland.

“What if I should fall right through the center of the earth… oh, and come out the other side, where people walk upside down.”


#16

The entire debate demonstrates just how powerful the judiciary has become. Roe v. Wade was judicial legislation at its worst. If the Court were to overturn it, it could be reinstated just as easily with a change in the composition of the Court. The best way to put an end to the travesty is to amend the Constitution. Unfortunately, such an amendment would not get through the required 3/4 of the states.

The Court overturned two long-standing precedents at the end of this term. That is very unusual. Neither was in a piecemeal fashion, either. I think the Court will overturn Roe (if at all) in one fell swoop. But, this depends on an appropriate case coming before the Court. So, it would have to involve some challenge to a state statute restricting abortion at some point (rather than, say, a challenge to a statute requiring a provider to describe what happens during an abortion).


#17

That would take a long time. In a nutshell, the Court relied on Griswold v. Connecticut, which held that the rights actually written (enumerated) in the Constitution have something called penumbras (or zones, if you will) that cover things not actually written in the Constitution. One of the rights found in the penumbras is the right to privacy. Because there is an implied right to privacy, Connecticut could not forbid the sale of contraceptives to married couples.

Roe relied on Griswold to assert that the decision to have an abortion falls within that implied right to privacy. If you want a real interesting look in how the Roe opinion developed, you should read The Brethren by Bob Woodward. It will confirm that Roe was the definition of judicial legislation. Justice Brennan from the get go had a specific result he wanted, and went to great lengths to make it happen.

Many legal scholars, even those of a liberal persuasion, believe Roe to be one of the worst pieces of jurisprudence in American history.


#18

SCOTUS can choose to fast track any case if it so chooses…


#19

I hope you are equally appalled by those (most people) who oppose the murder of those outside of the womb. You can’t oppose one and say about the other, “Leave me to my privacy!”


#20

ASAP when at the earliest possible opportunity.


#21

We have the Republicans to thank for the Roe v. Wade decision in the first place. Who is to think this would make things any different?


#22

Y’all realize that the SCOTUS does not just sit around deciding “I’ll instate this law” “let’s overturn that law”.

Laws are not overturned just because a Justice decides to do it. They do not rule by fiat, nor does the POTUS,

One Catholic justice is being replaced by another Catholic justice.


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