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What If Roe Goes?

My colleague Jessie Hill has posted the second and third installments on "Overruling Roe over at PrawfsBlawg. I noted her first installment here.

In Part II, she briefly explored the landscape of abortion law in a post-Roe environment.

One possibility . . . is that the post-Roe legislation regulating abortion in ways inconsistent with earlier bans would be understood as impliedly repealing the prior legislation. Another possibility is that the eponymous doctrine of desuetude, or some version thereof, might prevent their enforcement, especially given that such pre-Roe laws in many cases would not garner a majority of the present-day legislatures in the states where they exist.
In Part III, she raises the more interesting issue of the implications of a challenge to Roe — or, more likely in the immediate future, the overturning of Stenberg v. Carhhart — to a constitutional right to protect one's own health. Jessie argues that the Court's abortion decisions, particularly their insistence on a women's health exception to abortion restrictions, suggest a constitutional right to protect one's health that has not, as of yet, been relied upon in other contexts. The question, then, is whether this right would survive an overturning of Roe, and how it would play out in other health contexts.

Relatedly, our own Eugene Volokh explores a right to "medical self-defense" here. Jessie's discussion also brings to mind the D.C. Circuit's recent discovery of a right to potentially life-saving drugs, which we blogged about here and here.

UPDATE: For more on the D.C. Circuit's Abigail Alliance case, see here.

Confused Guest (mail):
I understand what the doctrine of desuetude is, but what exactly is the "eponymous doctrine of desuetude"?

Is that like the eponymous heroes of ancient Athens, the 10 heroes whose names became the designations -- eponyms -- for Athens' 10 tribes?

Was there a Mr. Deseut who have his name to this doctrine? In that case shouldn't be the eponymous Mr. Desuet, rather than the eponymous doctrine of desuetude?
3.6.2007 11:52am
TheGoodReverend (mail) (www):
Do you think the Court is more likely to overturn Stenberg or to distinguish the congressional law as better than the Nebraska ban? Does Congress deserve more deference? Arguably, if you think it could become better informed about the medical issues and make both a more rational distinction between abortion procedures and a better justification regarding the health of the mother.
3.6.2007 12:15pm
Seamus (mail):
"eponymous"? What exactly is alleged to have been named after the doctrine of desuetude? Maybe Roe's real name wasn't Norma McCorvey after all, but Norma Desuetude?
3.6.2007 1:04pm
therut:
Oh the wicked web we weave when we practice to decieve. About sums up my opinion of law in this country. One thing leads to another and no one knows what they are doing or where they are leading themselves and others toward. Roe vs Wade is just the best example.
3.6.2007 1:08pm
Waldensian (mail):

Another possibility is that the eponymous doctrine of desuetude, or some version thereof, might prevent their enforcement,

This is a horrible bit of prose. That "thereof," in particular, rubs salt into an already festering literary wound.

If I knew what it meant, I might be even more offended.

idiotic self-aggrandizing italicized signature line
3.6.2007 2:49pm
PubliusFL:
"Jessie argues that the Court's abortion decisions, particularly their insistence on a women's health exception to abortion restrictions, suggest a constitutional right to protect one's health that has not, as of yet, been relied upon in other contexts."

That's one of the best reasons to wipe Roe v. Wade and its progeny from our judicial memories. The courts have barely begun to explore the potential emanations of the Bill of Rights' penumbra.
3.6.2007 2:54pm
Ship Erect (mail) (www):
The courts have barely begun to explore the potential emanations of the Bill of Rights' penumbra.

I know! Just think: someday, somewhere, people will have even more freedom to control their own bodies and lives. The horror!
3.6.2007 5:38pm
jvarisco (www):
What does privacy have to do with health? Am I missing something here? One would hope there are limits as to the rights the court will decide to invent.
3.6.2007 7:13pm
Ship Erect (mail) (www):
jvarisco, health decisions--choosing what to put into or take out of one's body--are surely among the most fundamental to existence. If a government can control its citizens in this manner, what can't it do?
3.6.2007 7:32pm
Thomas Alan (mail):

I know! Just think: someday, somewhere, people will have even more freedom to control their own bodies and lives. The horror!


Yep. The horror has resulted in millions of innocents' deaths so far and climbing every day.
3.6.2007 7:32pm
The General:

"Jessie argues that the Court's abortion decisions, particularly their insistence on a women's health exception to abortion restrictions, suggest a constitutional right to protect one's health that has not, as of yet, been relied upon in other contexts."

that is, "a constitutional right to protect one's health" unless you are protecting your health with a gun. Then, you go to jail.
3.6.2007 7:36pm
The General:

I know! Just think: someday, somewhere, people will have even more freedom to control their own bodies and lives. The horror!


What a typical reaction from a paranoid liberal. no one is against "controlling one's own body." That vague notion (whatever it means) simply isn't protected in the Constitution. Get a majority of voters and legislators to pass some laws if you want some "control of your body" that you don't now have. THAT's how you enact your policy preferences. You don't do it by having a bunch of unelected judges constitutionalize your preferences.
3.6.2007 7:41pm
Ship Erect (mail) (www):
Thomas Alan: Yep. The horror has resulted in millions of innocents' deaths so far and climbing every day.

So who would you have go to jail for these crimes? Planning on locking up the millions of women who have had abortions?

The General: What a typical reaction from a paranoid liberal.

Thank you for assuming much about my political beliefs. Paranoid indeed!

no one is against "controlling one's own body."

Perhaps you have never heard of the War on Drugs or sodomy laws?

That vague notion (whatever it means) simply isn't protected in the Constitution.

I thought we had a limited government, with enumerated powers? Where does it say in the Constitution that the government has the power to tell women to give birth?
3.6.2007 7:57pm
Cornellian (mail):
no one is against "controlling one's own body."
That vague notion (whatever it means) simply isn't protected in the Constitution.


If the constitutional right of life, liberty and property doesn't include control of one's own body, it doesn't include anything.
3.6.2007 8:17pm
KeithK (mail):
I thought we had a limited government, with enumerated powers? Where does it say in the Constitution that the government has the power to tell women to give birth?

The Constitution doesn't say that the federal government has the power to tell women to have birth. It also says nothing that would prevent state governments from doing so.

If the constitutional right of life, liberty and property doesn't include control of one's own body, it doesn't include anything.

The 14th amendment provides a right not to be deprived of life, liberty or property without due process of law. Whether or not this trio include "control over ones body", the clause indicates that one can be deprived of these things with due process of law. In my mind, a state law enacted in accordance with that state's constitution that outlawed abortion would satisfy the due process requirement. That would be so regardless of whether it would be a good idea.
3.6.2007 8:37pm
David Maquera (mail) (www):
...but we continue to overlook the fact that not only are the mother's rights to privacy at issue here but also the unborn child's right to life!
3.6.2007 9:35pm
Ship Erect (mail) (www):
^^ Is it possible to be politically aware in the U.S. and not know that dilemma is the crux of the abortion issue? No one with an opinion "overlooks" it.
3.6.2007 11:20pm
Insignificant Dallasite:
I thought we had a limited government, with enumerated powers? Where does it say in the Constitution that the government has the power to tell women to give birth?
And where does it say in the Constitution that the government has the power to outlaw murder, or theft, or kidnapping, or...?
3.7.2007 11:21am
NCCU3L:

The 14th amendment provides a right not to be deprived of life, liberty or property without due process of law. Whether or not this trio include "control over ones body", the clause indicates that one can be deprived of these things with due process of law. In my mind, a state law enacted in accordance with that state's constitution that outlawed abortion would satisfy the due process requirement. That would be so regardless of whether it would be a good idea.


How is what you've suggested not the very definition of tyranny of the majority? If you take that statement to its logical conclusion, the only "due process" you get is that a majority of your state legislature wanted to do it. If that was all the due process the founders had in mind, our Constitution was an awfully long and wordy way of spelling that idea out.

This is particularly true with sodomy (and other "crimes against nature") and drug laws. We outlaw those things because they are bad, and because they are bad we outlaw them. Entirely circular reasoning, in my view.
3.7.2007 12:13pm
wooga:
If you take that statement to its logical conclusion, the only "due process" you get is that a majority of your state legislature wanted to do it.

So... the 14th Amendment categorically outlawed the death penalty?

Look, the states can kill you if they put in place the right procedures. The states could also outlaw sexual practices the people found immoral (although some time after 1983, the Supreme Court apparently decided that 'legislating morality' was, after thousands of years in all cultures across the globe, no longer a legitimate practice unless that morality was confined to secular humanism).

Where am I going with this post? I have no idea. Something about my general displeasure with the federal judiciary imposing it's views on the many states. I only want that to happen through the proper Amendment process - as that is the only way to ensure the will of the people is followed. Otherwise, why not just adopt the Iranian model of an unelected panel of judges holding absolute power over a puppet legislature?
3.7.2007 1:11pm
unhyphenatedconservative (mail):
"This is particularly true with sodomy (and other "crimes against nature") and drug laws. We outlaw those things because they are bad, and because they are bad we outlaw them. Entirely circular reasoning, in my view."

If your view is so reasonable, then it should be pretty darned easy to convince your fellow citizens, and your legislature, to overturn those laws, shouldn't it?
3.8.2007 1:33am