Despite the merits of abortions, the Supreme Court’s job is to determine the constitutionality of laws, not create new laws or twist existing laws to say what they wish they did.
The concept of “legislating from the bench” should terrify everyone in America as it is a sidestep of the checks and balances among the 3 branches of government.
It is the job of Congress to enshrine the right to an abortion into Federal law.
The Supreme Court absolutely does legislate from the bench. For example, regardless of how one feels about abortion rights, the famous Roe v. Wade case essentially invented a new law with no explicit Constitutional foundation.
It's not the job of the court to make laws. At one point the court decided that abortion fell under the 14th A, then they decided it didn't. Congress should have made access to an abortion a real law.
Courts are not supposed to legislate from the bench. Roe v Wade was clearly inappropriate ruling from day one. It undermined the integrity of the supreme court.
Abortion should be ingrained as legal via state/federal law.
It’s been known for decades that roe v wade was a weak basis for abortion rights. The constitution does not have any law on abortion, and it’s Congress’s job to create federal laws.
If the right to abortion is deemed an important right to protect at federal level then Congress should have the courage to legislate.
I am not a lawyer at all but looking at descriptions of Row v. Wade the feeling I have is that the Supreme Court of the time wanted to rule in favour of abortion rights and stretched the Constitution as much as it could in order to justify its decision, which is why that decision has always been under attack, IMHO.
This is an eminently political issue and thus it calls for a political decision by Congress (assuming they do want a federal law on this...)
In the meantime, an 'industry' will develop in 'liberal' states for those who can travel to them.
Congress had decades to make actual abortion laws, and both sides had times where they were fully in power - not that they shouldn’t have compromised on something like 12 or 15 weeks instead like most European countries.
As far as people’s opinions of the court goes, it really grinds my gears how most people assume the Supreme Court is there to essentially make or strike down laws on their own whims. That’s not how it’s supposed to work. I’m no judicial scholar but it seems to me the current court is doing the best job of what they’re actually supposed to do than they have in a long time.
Your point about Roe v Wade is precisely my point. The right to abortion is simply not in the Constitution. If Congress wants to pass that law, they may, and that would be legal according to the Supreme Court. Any honest legal scholar will tell you that Roe v Wade is a ridiculous Supreme Court decision, simply because it is sua sponte law.
The current court is not violating separation of power by overturning older laws. Your point about the court only overturning vague laws is completely false. The court exists as a check on Congress and the executive to hold them accountable to the texts which charter them. It is designed this way because overturning laws is far less harmful than upholding them. Government should do less, not more, and that is in our DNA as a country. The Supreme Court is acting as designed.
I don’t like how everyone is blaming the Supreme Court for actually functioning. There is no constitutional right to abortion. They created it out of thin air in Roe V Wade, and it’s been corrected here. This pushes the regulation back to a disfunctional legislature. Focus on their failings.
This could be the turning point in society putting up with a congress that constantly abdicates its responsibility to legislate…responsibly.
2nd amendment is a right codified in the constitution. Abortion is not in the constitution, which is what this ruling states. If congress wants to legalize abortion, then that's their job...to make laws. The supreme court does not make laws.
It also by itself does not restrict anyone from the help that they need.
It is not the job of the Supreme Court to care for the reproductive health of the American people. Of the federal government, that would either be the job of the executive or the legislature, depending on your preferred view of the executive branch.
But that’s exactly what the Roe v Wade decision was - decide what policy you want, then have the court come up with an argument as to why that right exists.
It’s not supposed to work that way. The legislature makes laws, the court interprets under the framework of the Constitution.
Precedent is important, but it’s not supposed to create law out of thin air. It’s supposed to be based on a firm set of decisions that flow from the Constitution and law.
Regardless of my opinion on whether states should be able to restrict abortions, I really didn't like Roe vs. Wade. This should be a law that congress votes for/against and be held responsible for by their voters.
I wonder how such a legal framework would work if the court could go to their respective law makers and say that the law is unclear in this case and require them to vote on it. Then, rather than Roe vs. Wade being passed in the first place, the supreme court would order congress to vote for/against a new law forbidding states from being able to restrict abortions.
- Do you think abortions should be determined by legislature rather than the judiciary?
(i.e. Roe vs Wade was tenuous from a legal perspective, and IMO a supreme court shouldn't be able to make it's own laws up which I think this veered into, even though I 100% agree with a woman's right to abortions!).
The U.S. should pass a law rather than relying on a court decision. Roe v Wade was a poor decision from a legal standpoint. For example, why were abortions in the first trimester considered due process under the 14th amendment but in the last 2 trimesters they were not? The court should not be creating the law, the legislature should be doing that. Pass a law in the U.S. legislature and that will take precedence over state law (see the Supremacy Clause in the U.S. Constitution).
Any legislation passed by congress will get challenged by the states that want to restrict abortion. This court will side with the state challenging the federal law.
Not really. SCOTUS just ruled that constitution isn't responsible of enforcing that right, and noted that there's currently no federal law on the topic. But if congress passed a bill about guaranteeing abortion, it would become “federal concern”.
American here. I think it's important to not characterize judicial review in the Row case as lawmaking. Although lots of anti-abortion advocates criticized Roe as legislating from the bench, the court was actually doing was checking the power of various state governments to take away individual rights. Judicial review has certainly been misused by the court in other cases to legislate, and the concept is anti-democratic to a problematic degree, but it is an important check on governments taking away individual liberties in the US constitutional system, at least in theory.
In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.
It's also worth remembering that there was never a realistic chance of a nationwide right to abortion being passed through congress. There are a few reasons for it. Only about 15% of the country is against abortions in all circumstances, but they're a loud minority. Similarly, 20-30% of American are pro-choice under any circumstance. But the majority of Americans support abortion only in certain circumstances, and they tend not to care as much about it. [1]
In cases where a majority doesn't have strong opinions, the US government doesn't really need to pay attention to the will of the voters. Politicians are rarely if ever punished for it. A similar dynamic played out with net neutrality during the last administration. Despite the public, including Republicans, being overwhelmingly for it, it was an issue they hardly cared about, and so the FCC was basically free to do whatever they wanted.
The other reason is that voters who are anti-abortion are not equally distributed amongst the population. Some, mostly smaller states are vehemently anti-abortion. As such, the senate would never muster the 60 votes needed to pass legislation protecting the right. Without Roe, for the last 50 years, we'd basically have been in the situation we're in now: legal in some states, illegal in others, with states fighting each other over whether or not residents can cross state lines to get an abortion.
The concept of “legislating from the bench” should terrify everyone in America as it is a sidestep of the checks and balances among the 3 branches of government.
It is the job of Congress to enshrine the right to an abortion into Federal law.
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