Could the Supreme Court prohibit abortion? (And other misconceptions about overturning Roe v Wade) Here's my layman's understanding of Roe v Wade: A state had a law prohibiting abortion; That law was challenged all the way up to the Supreme Court; The Supreme Court found a right to abortion in the 14th Amendment; The right to abortion was thus determined to be constitutionally protected; The Constitution takes precedence over both state and federal law; Therefore, neither the states nor the federal government may pass any law abridging the right to abortion. If Roe v Wade were to be overturned by some future Supreme Court, it would mean that the right to abortion is not found in the Constitution, and therefore not constitutionally protected. Thus, the states and the federal government would be free to pass laws banning abortion, if they so choose. I think many Americans would be surprised to learn that if Roe v Wade were overturned, it wouldn't mean abortion is automatically outlawed throughout the land. It means every state and the federal government would have the opportunity to make its own laws about it. (Get ready for 50+1 more battles, I guess.) But could a future Supreme Court not only overturn Roe v Wade, but also find that abortion is prohibited by the Constitution, thereby preventing the states from making their own laws about it? Does the Supreme Court ever rule that something is prohibited, or only protected/not protected? Not exactly sure how this could go down anyway. The Supreme Court doesn't write laws, and a prohibition on abortion would have to involve not only the prohibitory statement itself, but also exact definitions, sentencing mandates, parole guidelines, etc. This sounds more like the state legal codes on homicide (first-degree murder, premeditated murder, vehicular homicide, manslaughter, accidental homicide, accessory to murder, etc.) than a Supreme Court ruling.
There is no higher court which can overturn a SCOTUS decision, so in theory (or, imaginarily) they can rule any way they please. The ruling could then be overturned by a later court, as happened in these cases. However, justices of the Supreme Court can be impeached (impeachment is not subject to judicial review), so the individuals responsible for such a ruling could be impeached. Or, if the sitting president is favorable and the enabling legislation has been passed, additional members of the Supreme could be added, as was unsuccessfully attempted during the Roosevelt administration. The court could not write specific enforceable statutes defining the crime and imposing a penalty. They could rule that there is such-and-such right which is protected by the Cconstitution, and that that right must be protected by the states (for instance, a state may not pass a law that prohibits practicing the Pastafarian religion). It would be unprecedented, though, for SCOTUS to order a legislature to pass particular legislation. That would not mean that a ruling could not be written which mandated that, but it would be a huge break from tradition and a clear breach of the separation of powers. Legislatures could respond "they have made their decision; now let them enforce it". Decades ago, existing state death penalty laws were declared unconstitutional as defective with respect to the 8th Amendment, meaning that there was no death penalty in many states for some time. Homicide statutes could likewise be struck down en masse, perhaps as an Equal Rights violation, which would means that either homicide is now legal, or the Equal Rights violation in those statutes must be eliminated. All that SCOTUS would have to do is rule that a fetus is a person. Recall Roe v. Wade: 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. A model for how this might take place is McCleary v.Washington, where the Washington Supreme Court ordered the legislature to act to fund public education, on constitutional grounds that the legislature has an obligation to do certain things. The leverage imposed by the court was a large daily contempt fine that went up to over $100 million. However this was symbolic (lifted when the legislation was passed), and it took 3 years to implement the order.
One can argue both ways. On one side, yes, zero representation in the Senate for all states is equal suffrage in the Senate. On the other side, no, depriving all states of all representation in the Senate deprives them of their suffrage in the Senate (without needing to consider the question of whether the suffrage is equal). Since this question has never been considered by a court, we can't do much more than speculate how one might rule. There has never been an amendment proposed to modify the composition of the Senate -- at least not one that was seriously considered. The spirit of the law works in favor of the second interpretation. Furthermore, a strict application of abstract logical reasoning was probably not the intention of the framers. A strategy that might seem more likely to succeed would be to introduce amendments reducing the Senate's power in the legislative process, similar to the evolution of the House of Lords in the UK. If the goal were to sideline one state, this might work, but if the goal is to address the complaint that the Senate is undemocratic because people in smaller states have proportionally more influence there, there's no way the amendment would pass 3/4 of the states' legislatures. The number of states with one or two representatives is 13, by itself a sufficient number to block the adoption of an amendment.
Both Congress and the state legislatures are expressly forbidden by the Constitution from passing bills of attainder. That means neither can ever pass a law that names an individual and says "they are suspended." It is so important that it's one of the very few restrictions on government that the original Constitution (before any amendments) prohibited in bot state and federal governments. (Also, a "bill" is not a law. It's what a legislature is considering making a law.)
Because the 1860 law that criminalised “unnatural” sex is unconstitutional In essence, Navtej Singh Johar v. Union of India decided that criminalising sex between consenting adults violated the Constitutional right to equality. You have a Law in the Constitution that says people have to be treated equally. You have another law that says people in same-sex relationships are to be treated differently. The law in the Constitution wins. According to the BBC: Thursday's decision was delivered by a five-judge bench headed by India's outgoing chief justice Dipak Misra and was unanimous. Reading out the judgement, he said: &quot;Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional.&quot; Another judge, Indu Malhotra, said she believed &quot;history owes an apology&quot; to LGBT people for ostracising them. Justice DY Chandrachud said the state had no right to control the private lives of LGBT community members and that the denial of the right to sexual orientation was the same as denying the right to privacy. The courts in India, like they are in most common law/civil law jurisdictions are interested it questions of law. Questions of sin and morality they are happy to leave to religion.
Before the election, can a lawsuit prevent the amendment question from being put on the ballot? No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives). Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional? Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone.
Congress has the power to propose amendments, but not to enact them. Amendments are only enacted once they're ratified by 3/4ths of the state legislatures. And yes, there's no reason to think it would be unconstitutional for 2/3rds of each house of Congress plus 3/4ths of the state legislatures to make fundamental changes to the Constitution like eliminating other branches of government. The only limit on amendments that's still in effect is that states can't be deprived of equal suffrage in the Senate without their consent.
If you want to sue them, you should start with the US Constitution (as a model), in particular the Free Exercise clause: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The question is whether one could overturn homicide statutes on the grounds that an individual holds to traditional beliefs that a human sacrifice is required every few months. Or, is it an unconstitutional prohibition of the Mormon belief in polygamy to outlaw polygamy, see Reynolds v. US, 98 U.S. 145. The court held that the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Observe that a religious exception to the law would be unconstitutional, as establishing religion as a means of gaining extra rights. The reductio ad absurdum of the unfettered religious-belief excuse is: Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. The "wall of separation" was modified more recently in the 60's and 70's. In Wisconsin v. Yoder, 406 U.S. 205, the issue was compulsory education imposed on Amish children, where higher education was held to be antithetical to the Amish doctrine of a simple life. The court rules that The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children and especially it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish There were additional holdings pertaining to the legitimacy of the purported belief (that is, is there really such a doctrine – clearly yes). You might have better luck purporting to be a Rastafarian or Hindu, so I will set aside that complication. The core question will be whether the government has a "compelling interest" in the restriction, also whether the restriction is narrowly tailored. In the case of Sherbert v. Verner, 374 U.S. 398, Sherbert's employer required her to work 6 days a week (a change in policy during her time of employment), which she refused to do (as a member of SDA) and was fired. Sherbert was denied unemployment benefits because the firing was for cause. The court ruled that Disqualification of appellant for unemployment compensation benefits, solely because of her refusal to accept employment in which she would have to work on Saturday contrary to her religious belief, imposes an unconstitutional burden on the free exercise of her religion. and There is no compelling state interest enforced in the eligibility provisions of the South Carolina statute which justifies the substantial infringement of appellant's right to religious freedom under the First Amendment. Employment Div. v. Smith, 494 U.S. 872 brings us to the neighborhood that you are interested in living in. The relevant detail is that Smith (and Black) were fired for ingesting peyote in connection with a ceremony at a Native American church. The court ruled that The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use To be more precise, Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. We can contrast this with Lukumi v. Hialeah, 508 U.S. 520. The city of Hialeh passed an ordinance forbidding animal sacrifice, specifically to suppress the Santeria church. The Supreme Court said, no, you may not do that: Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability. However, where such a law is not neutral or not of general application, it must undergo the most rigorous of scrutiny: It must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. Neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied ... The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice. At least so far, restrictions on drug use have not been overruled as conflicting the the Free Exercise clause, although if e.g. Washington state were to prohibit Mormons from purchasing marijuana (where others can), that would surely be struck down as unconstitutional. There are a number of other relevant developments, for example Congress passed the Religious Freedom Restoration Act in 1993, in reaction to Employment v. Smith, and that law statutorily mandating that strict scrutiny be applied to the question of whether a law violates the 1st: but this was ruled unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507. Then in Gonzales v. O Centro, 546 U.S. 418 (Schedule 1 tea for religious purposes), the court ruled that The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca which is to say, we have a case where the federal government was prohibited from enforcing a drug prohibition involving religion. A challenge of the type which you have in mind will surely also involve the question of the legitimacy of the purported religion, where UDV was founded in 1961 whereas one might suspect that your claimed religion is a pretext to smoke pot (hence the Rastafarian suggestion). The WWII era conscious objector cases held that the CO exception to military service is not limited to governmentally-approved religions, but as a general rule, the courts have not ruled that you can simply claim to have a religious belief which is being infringed on and thereby be excempt from the law. The basic issue would be whether either the US government of the state of Kentucky have a compelling interest in preventing the use of marijuana. The Kentucky Supreme Court does indeed recognize the concept of "strict scrutiny", so the case is not doomed from the start.
In the United States, blasphemy is really not a crime even if it severely offends certain people and tends to cause them to want to riot and kill the person who offends them. Most Americans who are familiar with the law and the U.S. Constitution strongly support this policy and think it is obviously right. Not every country interprets its freedom of speech laws (if it even has freedom of speech laws) in this way. For example, Canada has a law against blasphemy, as do almost all countries which have an official state religion (which is called the "establishment" of a religion). Also many countries have seemingly contradictory constitutional provisions and courts have to resolve their relative priority. For example, many Muslim countries have constitutions that simultaneously contain a right to freedom of speech and a provision that says that Sharia law is the supreme law of the land (e.g. both Afghanistan and Iraq recently enacted constitutions that say both of those things). A court could decide that the Sharia law provision prevails over freedom of speech in the event that the two conflict, or could reach the opposite conclusion. Nothing on the face of a constitution like that will tell the court how to resolve the issue. Many other countries have laws against intentionally and publicly offending someone's religious beliefs, which is similar to, but not the same as, a blasphemy law. Blasphemy, narrowly interpreted, means saying something that contradicts the doctrines of the nation's official religion, without regard to whether it is offensive - so, for example, saying that Mary the Mother of Jesus got pregnant the ordinary way, rather than having a virgin birth, would be blasphemy even if no one was offended by you saying that in a country where Roman Catholicism or Lutheranism or the Anglican Church was the official religion. A narrow Blasphemy law offends the idea of separation of church and state because it makes the government the ultimate determiner of what the doctrines of the nation's official religion says and allows a government to have an official religion. It is also notable that there are two parts to the freedom of religion in the United States. One part is the "free exercise clause" which allows people to practice the religion of their choice. The other part is the "establishment clause" which prohibits the government from favoring one religion over another or even favoring being religious over being not religious. The "free exercise clause" is similar to the stance that the Koran takes towards "People of the Book" but applied to any kind of religious belief not just Jews and Christians. Many conservatives in the United States are strong supporters of the free exercise clause, but think that the establishment clause should only apply to the federal government (so the state and local governments can establish a religion). Other conservatives think that the establishment clause should only prevent the government from preferring one denomination of Christianity over another denomination, even though the drafters of the constitution and courts ever since then have made clear that this was not the intent of the establishment clause. Article 11 of the Treaty of Tripoli, signed by the President and ratified by the Senate so that it took effect in 1797, just six years after the Bill of Rights was adopted, for example, specifically noted that the freedom of religion in the United States included Muslims. Many countries have a freedom of religion that protects free exercise but does not have an establishment clause. The Universal Declaration of Human Rights similarly protects only free exercise and does not prohibit governments from having an established religion. Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The U.N. Universal Declaration of Human Rights is usually not enforceable in the courts unless a country decides that it will enforce it. It does not usually have the effect of causing the laws of a country to be invalidated the way that an unconstitutional law would be invalidated. Put another way, the Universal Declaration of Human Rights and most other international human rights treaties are usually determined by courts to be not "self-executing". So, it is up to the legislative process in a particular country to decide how to implement human rights if it does so at all. In contrast, Europe has a treaty that is part of the Council of Europe organization with similar provisions, that is binding on member states even if it violates their laws (i.e. it is "self-executing").