A federal appeals court on Tuesday ruled that Texas hospitals and doctors are not obligated to perform abortions under a longstanding national emergency-care law, dealing a blow to the White House’s strategy to ensure access to the procedure after the Supreme Court overturned the constitutional right to abortion in 2022.
Except it wasn’t law, only jurisprudence. And many law scholars warned about the exact scenario that unfolded.
They ignored literal parts of the Constitution. How is another law going to stop that?
The Roe ruling was one based on a privacy argument that held up. A law explicitly enshrining these rights might have helped.
There are thousands of pages of legal analysis out there that break down how that should work. The goal would be to explicitly state these rights I stead of allowing interpretation by judges.
But laws are interpreted by the courts so a law passed by Congress would still be subject to their interpretation. In fact, even rights outlined in Constitutional amendments are interpreted by the courts. The best option would have been a constitutional amendment that was as specific as possible. However,
A) a constitutional amendment was not needed and should not have been required. The right to abortion was already codified in law and had a large pile of case law backing it up. Should we try to pass amendments for all the unenumerated rights? Do we need a state convention every time the courts rule in a way that establishes a new right?
B) Even that would not have stopped a court that had already made up its mind decades ago. They could have ruled that the new amendment violated the old ones and was void. They could have ruled it only protected abortion in rare cases, or that states rights are more important and overrule the right to abortion.
C) a constitutional amendment was never going to pass to requirements to become law. It would require a Dem supermajority in both chambers or Dem control of 2/3rds of states which is impossible with current gerrymandering.
Fundamentally we are looking at a whole party that would break any rule, law, or norm as long as it lets them do what they want. Establishing more rules or laws just gives them more things to break. The only party at fault here is them.
The courts don’t routinely invent entirely new rights whole cloth. It’s much, much more common to make rulings on exactly how already established rights apply in new or untested scenarios. Roe is one of those exceptions. Roe was weak legally, even if it was good from a policy standpoint.