Your responses to the abortion question are amazing. The question was, "What would happen if Roe v. Wade were overturned?" There were several neat ideas presented in your comments. I'll respond to these comments below the fold.
Dave is absolutely correct that the consequences that would flow from overruling Roe depend on how the opinion would be worded. Would the Court simply find that the state's interest in protecting fetal life overrides the interest of a woman in choosing whether to terminate a pregnancy (thus giving each state the power to prohibit abortions) or would it declare that the fetus is a person within the meaning of the 14th Amendment (thus making it unconstitutional for any state to permit abortions)? I agree with Dave that it is not likely that a constitutional amendment would be adopted to reinstate Roe anymore than it is now possible for the pro-life movement to secure the adoption of a constitutional amendment overturning Roe - the country is too evenly divided, and there are at least 13 states in each camp.
John's long and thoughtful post on the subject considers many of the sociological components of criminalizing abortion - a subject that people rarely like to talk about. In particular, he speculates about whether women who perform self-abortions (for example, by illegally taking "Plan B") would be punished, and what our society would do (or fail to do) with the "unwanted" children who would be born if abortion were outlawed. John, I salute your courage.
Jimmy James discusses the political ramifications and provides us with some useful studies of what the political impact of overturning Roe would be. He suggests that the electorate will punish the political party responsible for prohibiting abortions – Republicans if Kennedy changes his mind, Democrats (or specifically Obama – Hillary, are you listening?) if Sotomayor votes to overrule Roe. In answer to your question, Jimmy, no state could make it a violation of the law to leave the state to procure an abortion, although if Roe were overturned Congress would have the power to do that under the Commerce Clause. Under the commercial speech cases it's probable that the states couldn't even prohibit the advertising within the state of the availability of abortion services in other states.
Dan S. – you are against the states enforcing morality yet you seek a categorical definition of the concept "person." I think there may be a contradiction in that position. Does our understanding of who is a "person" arise from moral considerations?
Jon raises a fascinating point. I had always thought that overturning Roe would simply send the matter back to the state legislatures, but he points out that the Congress has the power under the Spending Clause (and I would add the Commerce Clause) to enact legislation that would influence or determine availability of abortions. Whew! Not only would every election for state office – every state senator and representative – but every race for Congress and U.S. Senator – would revolve around the abortion question.
Larry, if Jon is right, then I don't think that little would change. Politics would become all about abortion all the time – abortion debate 24/7 – until one side or the other prevails. At that point Jimmy James' political calculations would play out.
Amazing.
Next Monday's post will discuss the constitutionality of the Hate Crimes legislation pending before Congress. Have a great weekend!
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It seems to me much of politics revolves around abortion presently–it's the great demonizer on both sides and a litmus test for millions of citizens who don't want to spend more than five minutes deciding who to vote for.
If Jon is right, that would support my contention. Abortion is legal now, no? The clauses are just two more reasons why it would remain legal in most areas of the country post Roe v. Wade.
Thankyou for responding to my submission.
RE: "Does our understanding of who is a "person" arise from moral considerations?"
No; it is, or at least could be, based upon the point in fetal development where the entity becomes capable of sustaining life without direct support from the mother's body.
My underlying thought was that at some point, a social/legal compromise will be reached that only permits elective abortions up to a certain stage of fetal development. I suspect that early term abortions will be permitted as a matter of personal choice and late term abortions will be prohibited unless the continued pregnancy poses an obvious threat to the physical health of the pregnant female. Nobody would be completely satisfied, but it would work.