Why wasn't abortion made illegal when the Republicans had all the power?

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cazayoux

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Hello !

Depending on the issue, I might be Dem or Rep, but I lean more right than left overall.
I’m absolutely pro-life.
So is my father, who is a die-hard Dem.

We were discussing politics the other day
My dad’s stance is that voting for a pro-abortion Dem is okay, since voting for a pro-life Rep won’t change anything.
He asked “when the Rep’s had control of the House, Sen, Presidency and the Supreme Court, why wasn’t a law passed banning abortion?”

… and it’s got me thinking.
Why DIDN’T a law get passed making abortion illegal.

I’m hoping someone can give me a civics lesson here in what it would take to actually do this. What are the timelines to introduce legislation? Is the schedule/topics set at the beginning of the entire session? Is a simple majority required, or is it more to overturn the Supreme Court’s decision on Roe/Wade? Is it required that the Supreme Court overturn Roe/Wade before legislation can be passed?

Thank you all for your (name removed by moderator)ut.

michel

[No news link but thread may stay. Remember not to mention or alude to candidates in your discussion. -mod]
 
cazayoux said:
Hello !

Depending on the issue, I might be Dem or Rep, but I lean more right than left overall.
I’m absolutely pro-life.
So is my father, who is a die-hard Dem.

We were discussing politics the other day
My dad’s stance is that voting for a pro-abortion Dem is okay, since voting for a pro-life Rep won’t change anything.
He asked “when the Rep’s had control of the House, Sen, Presidency and the Supreme Court, why wasn’t a law passed banning abortion?”

… and it’s got me thinking.
Why DIDN’T a law get passed making abortion illegal.

I’m hoping someone can give me a civics lesson here in what it would take to actually do this. What are the timelines to introduce legislation? Is the schedule/topics set at the beginning of the entire session? Is a simple majority required, or is it more to overturn the Supreme Court’s decision on Roe/Wade? Is it required that the Supreme Court overturn Roe/Wade before legislation can be passed?

Thank you all for your (name removed by moderator)ut.

michel
Click to expand...
  1. The Supreme Court has declared it to be a constitutional right - so no “law” can take it away.
  2. To do away with this 'right" you either need a re-interpretation by the Supreme Court or a constitutional amendment.
  3. The Supreme Court has been unwilling to reverse Roe.
  4. Mere control of Congress and the Presidency is insufficient to adopt a constitutional amendment. You need a super-majority of both houses (2/3 of each) plus ratification by 3/4 of the states. Alternatively, you need a constitutional convention to take up the issue. Since no constitutional convention has been held since the adoption of the Constitution - and the one that proposed the Constitution was not called for that purpose - most scholars believe you cannot limit the powers and scope of such a convention. Therefore everyone is terrified of calling a constitutional convention - at least unless Madison, Monroe and their like were to control this one, too (at least everyone agrees that’s unlikely!!!). 😃
In short, the GOP didn’t have the power to end abortion.
 
Hello !

Depending on the issue, I might be Dem or Rep, but I lean more right than left overall.
I’m absolutely pro-life.
So is my father, who is a die-hard Dem.

We were discussing politics the other day and abortion.
My dad’s stance is that voting for a pro-abortion Dem is okay, since voting for a pro-life Rep won’t change anything.
He asked “when the Rep’s had control of the House, Sen, Presidency and the Supreme Court, why wasn’t a law passed banning abortion?”

… and it’s got me thinking.
Why DIDN’T a law get passed making abortion illegal.

I’m hoping someone can give me a civics lesson here in what it would take to actually do this. What are the timelines to introduce legislation? Is the schedule/topics set at the beginning of the entire session? Is a simple majority required, or is it more to overturn the Supreme Court’s decision on Roe/Wade? Is it required that the Supreme Court overturn Roe/Wade before legislation can be passed?

Thank you all for your (name removed by moderator)ut.

michel
 
johnnykins said:
  1. The Supreme Court has declared it to be a constitutional right - so no “law” can take it away.
  2. To do away with this 'right" you either need a re-interpretation by the Supreme Court or a constitutional amendment.
  3. The Supreme Court has been unwilling to reverse Roe.
  4. Mere control of Congress and the Presidency is insufficient to adopt a constitutional amendment. You need a super-majority of both houses (2/3 of each) plus ratification by 3/4 of the states. Alternatively, you need a constitutional convention to take up the issue. Since no constitutional convention has been held since the adoption of the Constitution - and the one that proposed the Constitution was not called for that purpose - most scholars believe you cannot limit the powers and scope of such a convention. Therefore everyone is terrified of calling a constitutional convention - at least unless Madison, Monroe and their like were to control this one, too (at least everyone agrees that’s unlikely!!!). 😃
In short, the GOP didn’t have the power to end abortion.
Click to expand...
Thanks Johnnykins
 
cazayoux said:
Hello !

Depending on the issue, I might be Dem or Rep, but I lean more right than left overall.
I’m absolutely pro-life.
So is my father, who is a die-hard Dem.

We were discussing politics the other day
My dad’s stance is that voting for a pro-abortion Dem is okay, since voting for a pro-life Rep won’t change anything.
He asked “when the Rep’s had control of the House, Sen, Presidency and the Supreme Court, why wasn’t a law passed banning abortion?”

… and it’s got me thinking.
Why DIDN’T a law get passed making abortion illegal.

I’m hoping someone can give me a civics lesson here in what it would take to actually do this. What are the timelines to introduce legislation? Is the schedule/topics set at the beginning of the entire session? Is a simple majority required, or is it more to overturn the Supreme Court’s decision on Roe/Wade? Is it required that the Supreme Court overturn Roe/Wade before legislation can be passed?

Thank you all for your (name removed by moderator)ut.

michel
Click to expand...
Michel, at this stage of the game abortion has been made legal by the Supreme Court (Roe v Wade) and until such time as a case is brought before the court that will challenge that decision, it remains the law of the land. Since partial birth abortion was not specifically mentioned in Roe v Wade, the Congress can, and did, propose legislation banning that horrific procedure. President Clinton did not veto that bill when it came before him, President Bush did. This is why it is so important that judges be appointed to the Supreme Court, and other regional courts, that will uphold the Constitution and not find things in that document that are not there. The prior court that passed on Roe v Wade said that privacy was the issue here, but nowhere in the Constitution do you find that. If the Congress could just simply outlaw abortion, it will not happen when we have a Democrat majority.

I hope this helps. If others on the forum know differently, or if I have given incorrect information, I am sure they will correct me.
 
johnnykins said:
  1. The Supreme Court has declared it to be a constitutional right - so no “law” can take it away.
  2. To do away with this 'right" you either need a re-interpretation by the Supreme Court or a constitutional amendment.
  3. The Supreme Court has been unwilling to reverse Roe.
  4. Mere control of Congress and the Presidency is insufficient to adopt a constitutional amendment. You need a super-majority of both houses (2/3 of each) plus ratification by 3/4 of the states. Alternatively, you need a constitutional convention to take up the issue. Since no constitutional convention has been held since the adoption of the Constitution - and the one that proposed the Constitution was not called for that purpose - most scholars believe you cannot limit the powers and scope of such a convention. Therefore everyone is terrified of calling a constitutional convention - at least unless Madison, Monroe and their like were to control this one, too (at least everyone agrees that’s unlikely!!!). 😃
In short, the GOP didn’t have the power to end abortion.
Click to expand...
As read the above, you can understand why there are such fights over the appointment of Supreme Court Justices. Obviously, the easier - and more likely winnable - course is to get 5 anti-abortion votes on the Supreme Court. However, to appoint a Supreme Court Justice the Senate must concur - and any Senator can filibuster an appointment to oblivion unless a 2/3 vote of the Senate passes a rule of cloture.

Of course, even a reversal of Roe would not end abortion, as each state would then have the right to regulate abortion.
 
Keep in mind, though, that overturning Roe v. Wade would NOT eliminate abortion. The issue would simply be sent back to the states. Some states would prohibit the procedure, and some would not. In those states where abortion was made illegal, if a woman still desired the procedure, she would probably still be able to have it done, either by crossing state lines or by means of illegal (and risky) “backalley” abortion.
 
mary_bobo said:
Congress can, and did, propose legislation banning that horrific procedure. President Clinton did not veto that bill when it came before him, President Bush did.
Click to expand...
Actually, Clinton vetoed two such bills, in 1996 and 1997. In each case, the House voted to override his veto, but the Republican-controlled Senate sustained the veto. Bush finally signed a ban into law in 2003.
 
johnnykins said:
As read the above, you can understand why there are such fights over the appointment of Supreme Court Justices. Obviously, the easier - and more likely winnable - course is to get 5 anti-abortion votes on the Supreme Court. However, to appoint a Supreme Court Justice the Senate must concur - and any Senator can filibuster an appointment to oblivion unless a 2/3 vote of the Senate passes a rule of cloture.

Of course, even a reversal of Roe would not end abortion, as each state would then have the right to regulate abortion.
Click to expand...
Another note:

A Nixon appointee wrote Roe - Blackmon

The dissenters in Roe were: White - appointed by Kennedy; and Rehnquist- appointed by Nixon

Those in favor of Roe were: Blackmon - Nixon; Burger - Nixon; Brennan - Eisenhower; Douglas - Roosevelt; Powell - Nixon; Stewart - Eisenhower; Marshall - Johnson.

NOTE Republican appointees were 5/7 of those in the majority - enough on their own to carry the vote. Of the dissenters - one was appointed by Kennedy.

The whole process and reliability of the votes of appointees is very fluid - no matter what.
 
We don’t need to overturn Roe v. Wade. Here’s why.

Strictly speaking, the decision of Roe v. Wade is binding only upon that specific case. However, we go by a principle called “Stare Decisis”, which is a Latin term meaning “ to abide by decided cases”; this principle of the common law requires judges to apply previous binding decisions of their own court or any higher court.

However, the text of Roe v. Wade has a clause in it (IX A.) which spells out exactly the circumstance under which it would have decided exactly the opposite than it actually did.

Here it is:
IX A. The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. 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. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
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Every year, legislation is introduced in congress which does exactly, and explicitly that. Every year, it dies in committee.

If this law ever passed, it would effectively make Roe v. Wade actually protect the right of the fetus to life.
 
mainusch said:
Here it is:
Click to expand...
Every year, legislation is introduced in congress which does exactly, and explicitly that. Every year, it dies in committee.

If this law ever passed, it would effectively make Roe v. Wade actually protect the right of the fetus to life.Just because Congress declares something to be so, doesn’t make it so. What such a law would attempt to do is interpret what the Constitution means by person. Interpretation of the law is the province of the judicial branch, and so this law would fall on the principle of separation of powers. I believe there was a case last year along these lines, but on a different topic.
 
Digitonomy said:
Just because Congress declares something to be so, doesn’t make it so. What such a law would attempt to do is interpret what the Constitution means by person. Interpretation of the law is the province of the judicial branch, and so this law would fall on the principle of separation of powers. I believe there was a case last year along these lines, but on a different topic.
Click to expand...
Indeed. I would also suggest that the applicable language from the quote from Roe is the language highlighted, below:

X A. The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. 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. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
 
Digitonomy said:
Just because Congress declares something to be so, doesn’t make it so. What such a law would attempt to do is interpret what the Constitution means by person. Interpretation of the law is the province of the judicial branch, and so this law would fall on the principle of separation of powers. I believe there was a case last year along these lines, but on a different topic.
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Except that the USSC has carefully avoided making such a definition entirely, and seems to call for such a definition to be made by someone in this clause.

Even if after passage of this law, someone takes it to the Supreme Court for this reason, the Supreme Court would then have to declare that the fetus is not a person… or that it is. If forced to make that call, given the current makeup of the court, which do you think will prevail?

The only other choice is one that the USSC commonly opts for: refuse to hear the case. And thus, future cases are bound by Roe v. Wade’s own language, protecting the right to life of the fetus under the fourteenth amendment. A new law prohibiting abortion is appealed under Roe v. Wade, and any court will have to consider that Roe v. Wade’s criteria of a definition of personhood HAS BEEN MET.
 
ilovekittens said:
Keep in mind, though, that overturning Roe v. Wade would NOT eliminate abortion. The issue would simply be sent back to the states. Some states would prohibit the procedure, and some would not. In those states where abortion was made illegal, if a woman still desired the procedure, she would probably still be able to have it done, either by crossing state lines or by means of illegal (and risky) “backalley” abortion.
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Of course.

Can you think of any crime that is completely eliminated when there is law that forbids it.

We want the crime to be punishable by law when it’s committed. That’s the whole point.
 
cathgal said:
Of course.

Can you think of any crime that is completely eliminated when there is law that forbids it.

We want the crime to be punishable by law when it’s committed. That’s the whole point.
Click to expand...
I disagree - the “whole point” is to save lives of babies, not punish. Frankly, this undercurrent of “let’s make everything a criminal matter - and execute the doctors, mothers, fathers and anyone abetting” will, IMHO serve only to prolong the carnage because with that undercurrent you will never get the societal buy-in.

I know many, if not most, on this board disagree, but I truly believe this “let’s criminalize” chant generates opposition, deflects from real solutions and serves to undermine the rule of law in general while prolonging the acceptability of abortion.
 
mary_bobo said:
President Clinton did not veto that bill when it came before him, President Bush did.
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Minor correction – Clinton did veto the partial birth ban. That is to say, he forbade it to become law.

The bill passed the House in the next Congress, and went to the Senate where 60 (out of 100) senators signed on as co-sponsors – but never got to a vote. The Democrats had the majority in the Senate at that time, and the senior Democratic leadership blocked it.

It passed both House and Senate in the next Congress (both houses had Republican majorities) and went to Bush, who signed it into law.
 
“let’s make everything a criminal matter - and execute the doctors, mothers, fathers and anyone abetting”
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LOL, of course it’d cut down abortions. People are afraid of violent death. For someone who knows his history you sure missed out on Thomas Hobbes.
 
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