Roe v. Wade overturned in 1992

CaliGuy

Banned
What if Roe v. Wade would have been overturned in 1992?

Also, for the record, an easy way to do this would be to have an anti-Roe justice be put on the U.S. Supreme Court in place of Sandra Day O'Connor, Anthony Kennedy, and/or David Souter; indeed, that should result in somewhere between a 5-4 and a 7-2 anti-Roe majority on the U.S. Supreme Court.

In addition to this, out of curiosity--would pro-choicers and Democrats push to once again make abortion a federal issue by supporting U.S. Supreme Court picks who will revive Roe?

Any thoughts on all of this?
 
The easiest POD is for Silberman to be given the nomination instead of Kennedy.

If I had to take a guess, the ruling would likely be pretty narrow, saying there's no federal Fundamental right to an abortion, but I suspect the majority opinion would also explicitly disclaim the personhood of non-viable fetuses in terms of rights balancing.
 

CaliGuy

Banned
The easiest POD is for Silberman to be given the nomination instead of Kennedy.

Which Judge Silberman are you talking about here?

If I had to take a guess, the ruling would likely be pretty narrow, saying there's no federal Fundamental right to an abortion, but I suspect the majority opinion would also explicitly disclaim the personhood of non-viable fetuses in terms of rights balancing.

Actually, I think that the issue of prenatal personhood would be left up to the states for them to figure out.

Also, though, two questions:

1. Does this ruling result in a pro-Roe backlash against the U.S. Supreme Court which makes Clinton's victory in 1992 even larger than it was in our TL?
2. Do pro-choicers and Democrats advocate once again making abortion a federal issue after this ruling? Basically, I am thinking of a call to only nominate U.S. Supreme Court Justices who are in favor of reinstating Roe v. Wade.
 
Seems perfectly plausible. I assume you're thinking of Roe being overturned by Planned Parenthood v. Casey, since you specifically mention 1992? If that's the case, I would recommend looking to the OTL dissents as a basis for what a hypothetical ruling overturning Roe would look like. I'm not even sure I agree that such a ruling would overturn the federal right to an abortion. It would depend on the Court's basis for overturning Roe, and what parts of it they actually overturned. If the Court follows the Scalia approach, it would likely eliminate the federal right to an abortion, and return abortions to state legislation with out other constitutional restrictions. However, a more likely possibility is probably the Court lessening the standard of scrutiny applied to examining the constitutionality of state abortion laws. Casey established undue burden as the new standard, and IIRC Roe itself used strict scrutiny, so perhaps our hypothetical ruling would lessen that to rational basis?
 

Magical123

Banned
The religious conservative would be truly ecstatic and would push further efforts to restore morality(as they perceived it) in the country.
 

CaliGuy

Banned
Seems perfectly plausible. I assume you're thinking of Roe being overturned by Planned Parenthood v. Casey, since you specifically mention 1992? If that's the case, I would recommend looking to the OTL dissents as a basis for what a hypothetical ruling overturning Roe would look like. I'm not even sure I agree that such a ruling would overturn the federal right to an abortion. It would depend on the Court's basis for overturning Roe, and what parts of it they actually overturned. If the Court follows the Scalia approach, it would likely eliminate the federal right to an abortion, and return abortions to state legislation with out other constitutional restrictions. However, a more likely possibility is probably the Court lessening the standard of scrutiny applied to examining the constitutionality of state abortion laws. Casey established undue burden as the new standard, and IIRC Roe itself used strict scrutiny, so perhaps our hypothetical ruling would lessen that to rational basis?
Wouldn't abortion bans generally survive a rational basis test due to the desire to protect prenatal life, though?
 
The easiest POD is for Silberman to be given the nomination instead of Kennedy.

The simplest POD is to have Kennedy himself vote to overrule *Roe*, as he was at first inclined to do in *Casey.* He had after all joined in Chief Justice Rehnquist's opinion in *Webster v. Reproductive Health Services* https://en.wikipedia.org/wiki/Webster_v._Reproductive_Health_Services whch would have in effect overruled *Roe.* (O'Connor, while voting to uphold the Missouri law in question, would not go so far, and so *Roe*--barely--survived *Webster.*)

If Kennedy had adhered to his *Webster* approach--instead of shifting to the O'Connor-Souter "undue burden" compromise --*Roe* would have been overruled in *Casey*. But maybe the overruling is itself overruled once White leaves the Court and is replaced by a Clinton appointee. (And yes, White would still have retired even if he knew that it might mean *Roe* would be at least partly reinstated. Despite his conservatism on some issues, he was a Democrat and determined to retire once a Democrat won the presidency.)
 

CaliGuy

Banned
The simplest POD is to have Kennedy himself vote to overrule *Roe*, as he was at first inclined to do in *Casey.* He had after all joined in Chief Justice Rehnquist's opinion in *Webster v. Reproductive Health Services* https://en.wikipedia.org/wiki/Webster_v._Reproductive_Health_Services whch would have in effect overruled *Roe.* (O'Connor, while voting to uphold the Missouri law in question, would not go so far, and so *Roe*--barely--survived *Webster.*)

Yes, but the key is to prevent Kennedy from getting cold feet in regards to this once he becomes the decisive vote (after Thurgood Marshall's retirement in 1991).

Thus, it might be easier to have a more conservative U.S. Supreme Court Justice be appointed in place of O'Connor, Kennedy, and/or Souter.

If Kennedy had adhered to his *Webster* approach--instead of shifting to the O'Connor-Souter "undue burden" compromise --*Roe* would have been overruled in *Casey*. But maybe the overruling is itself overruled once White leaves the Court and is replaced by a Clinton appointee. (And yes, White would still have retired even if he knew that it might mean *Roe* would be at least partly reinstated. Despite his conservatism on some issues, he was a Democrat and determined to retire once a Democrat won the presidency.)

Question--after White's retirement, would O'Connor have been willing to bring back Roe? After all, she was unwilling to create a right to engage in "homosexual sodomy" in Bowers v. Hardwick (1986)!
 

CaliGuy

Banned
Also, which U.S. Supreme Court Justices, if any, have been overturned twice?

(For the record, I don't dispute that the liberal U.S. Supreme Court Justices would have probably supported bringing back Roe in this TL; however, historically speaking, having the U.S. Supreme Court reverse itself twice on an issue might have very well been unique and unusual.)
 
Also, which U.S. Supreme Court Justices, if any, have been overturned twice?

(For the record, I don't dispute that the liberal U.S. Supreme Court Justices would have probably supported bringing back Roe in this TL; however, historically speaking, having the U.S. Supreme Court reverse itself twice on an issue might have very well been unique and unusual.)

The only cases that I can think of off the top of my head is in regard to Jevohva Witness' right to refuse to refuse to say the pledge of allegiance (1941 struck down, in 1943 re-established) and Supreme Court's reversal of the "Seperate but Equal" precident.
 
Also, which U.S. Supreme Court Justices, if any, have been overturned twice?

(For the record, I don't dispute that the liberal U.S. Supreme Court Justices would have probably supported bringing back Roe in this TL; however, historically speaking, having the U.S. Supreme Court reverse itself twice on an issue might have very well been unique and unusual.)

In *Maryland v. Wirtz* https://en.wikisource.org/wiki/Maryland_v._Wirtz/Opinion_of_the_Court the Supreme Court held in 1968 that the US government could apply the minimum wage law to state employees. In *National League of Cities v.Usery* http://caselaw.findlaw.com/us-supreme-court/426/833.html the Court in 1976 overruled *Wirtz* and said that the federal government could not set minimum wages for state employees consistently with the Tenth Amendment. In 1985, *Usery* in turn was overruled by *Garcia v. San Antonio Metropolitan Transit Authority* https://en.wikipedia.org/wiki/Garcia_v._San_Antonio_Metropolitan_Transit_Authority
 
The religious conservative would be truly ecstatic and would push further efforts to restore morality(as they perceived it) in the country.
Would this not kind of take the wind out of their sails, though? Perhaps not right away, but if they got what they wanted nationally energy could sag.
 
The only cases that I can think of off the top of my head is in regard to Jevohva Witness' right to refuse to refuse to say the pledge of allegiance (1941 struck down, in 1943 re-established) and Supreme Court's reversal of the "Seperate but Equal" precident.

Those were cases where the Court reversed itself once, not twice. Cases where it overrules itself twice are much less common but as I noted above they do occur (e.g., on the issue of whether the federal government may, consistently with the Tenth Amendment, impose minimum wage requirements on state governments).
 

CaliGuy

Banned
In *Maryland v. Wirtz* https://en.wikisource.org/wiki/Maryland_v._Wirtz/Opinion_of_the_Court the Supreme Court held in 1968 that the US government could apply the minimum wage law to state employees. In *National League of Cities v.Usery* http://caselaw.findlaw.com/us-supreme-court/426/833.html the Court in 1976 overruled *Wirtz* and said that the federal government could not set minimum wages for state employees consistently with the Tenth Amendment. In 1985, *Usery* in turn was overruled by *Garcia v. San Antonio Metropolitan Transit Authority* https://en.wikipedia.org/wiki/Garcia_v._San_Antonio_Metropolitan_Transit_Authority
Thanks for this information! :)

However, was that series of cases the only exception to this rule?
 
Wouldn't abortion bans generally survive a rational basis test due to the desire to protect prenatal life, though?

Yes, I suspect abortion bans would survive the rational basis test by-and-large. But it would not be a full return to the pre-Roe state, there would still be an acknowledged right to an abortion, at least at some level. The question would be over the sort of right it was. IMHO, that is a very different debate than the one we have ended up with IOTL. There's also the matter of the Court changing the standard of scrutiny being a much easier sell for the pro-choice side than a full reversal. That would make it the more politic option.
 

CaliGuy

Banned
Yes, I suspect abortion bans would survive the rational basis test by-and-large. But it would not be a full return to the pre-Roe state, there would still be an acknowledged right to an abortion, at least at some level. The question would be over the sort of right it was. IMHO, that is a very different debate than the one we have ended up with IOTL. There's also the matter of the Court changing the standard of scrutiny being a much easier sell for the pro-choice side than a full reversal. That would make it the more politic option.
Hang on--why exactly would there be an acknowledged right to abortion nationwide in this TL?
 
Hang on--why exactly would there be an acknowledged right to abortion nationwide in this TL?
Because, under the idea I hypothesized of the Court altering the standard of scrutiny applied, the basic principle of Roe that women have a right to an abortion as a part of the right to privacy would not be altered. In practice, few abortion restrictions would fail the rational basis test, but in principle women would retain the right to an abortion, restrictions of it would simply be evaluated with greater deference to the states enacting them.
 
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