Could the Congress under Bush have overturned Roe v Wade?

Answer 1

Yes, the Supreme Court has the authority to overturn its own decisions (although it would have to be as the result of a different case, not Roe, specifically).

Bear in mind that Roe v. Wade was not just about declaring abortion legal, but also about the right to privacy and the right for medical decisions to remain between patient and doctor, which the Supreme Court extrapolated from the Due Process Clause of the Fourteen Amendment.

Roe v. Wade also stands on the merits of other Supreme Court decisions, most notably Planned Parenthood v. Casey, from which sprang the "Casey standard," a doctrine supporting the rights of the mother over the right of the state to protect a fetus prior to viability (being able to live outside the womb). Although Casey essentially supported abortion rights, it scaled back the age of viability from 24 to 22 weeks, creating a narrower window for legal abortion.

On the other hand, Chief Justice William H. Rehnquist and Associate Justice Byron White wrote a compelling dissent to the 7-2 ruling, indicating there may be other valid interpretations of rights and protections granted by the Constitution.

The Supreme Court has reversed earlier opinions in past cases, so it's possible Roe v. Wade could be overturned at some point. Most Constitutional scholars find this outcome unlikely, however.

Answer 2

No, they couldn't have overturned it; they could have written new legislation (as they have been trying to do for years) that circumvented the decision or rendered it moot, however.

For example, every year someone in Congress introduces legislation designed to give constitutional rights to fetuses beginning at the moment of conception. If a fetus had rights, states could quickly pass laws prohibiting abortions to protect the fetus' constitutional rights. Some states already have triggers in place that would outlaw abortion within 90 days of such legislation passing Congress.

The problem with a President and Congress attempting to enact anti-abortion legislation is the same problem we see with any controversial bill: The bill could be referred to committee and killed (which is what usually happens); it could be filibustered by opponents; Senators and Representatives would endure an onslaught of public pressure accompanied by fear of defeat in the next election (statistically, the majority of voters are still pro-choice); therefore, it may not find sufficient support to pass an up-or-down vote; it would require a sympathetic (probably lame duck) President to avoid veto; a veto would require a two-thirds override from both the House and Senate, a situation almost impossible to imagine (at least at the moment).

If (big if) Congress somehow managed to pass to criminalize abortion, it would immediately be challenged in a District Court of a pro-choice Circuit, which would result in a temporary injunction against the law until the Supreme Court determined it was constitutional. If the Supreme Court determined the law was unconstitutional, the new law would immediately be nullified.

Anti-abortion legislation is the dream of many Americans, but the likelihood of it ever coming to fruition is very small as long as we have an active two-party (or more) legislature and vocal opposition among the electorate.

Answer 3

No, they couldn't overturn it; they could write new legislation (as they've been trying to do for years) that circumvented the decision or rendered it moot, however.

For example, every year someone in Congress introduces legislation designed to give constitutional rights to fetuses beginning at the moment of conception. If a fetus had rights, states could quickly pass laws prohibiting abortions to protect the fetus' constitutional rights. Some states already have triggers in place that would outlaw abortion within 90 days of such legislation passing Congress.

The problem with a President and Congress attempting to enact anti-abortion legislation is the same problem we see with any controversial bill: The bill could be referred to committee and killed (which is what usually happens); it could be filibustered by opponents; Senators and Representatives would endure an onslaught of public pressure accompanied by fear of defeat in the next election (statistically, the majority of voters are still pro-choice); therefore, it may not find sufficient support to pass an up-or-down vote; it would require a sympathetic (probably lame duck) President to avoid veto; a veto would require a two-thirds override from both the House and Senate, a situation almost impossible to imagine (at least at the moment).

If (big if) Congress somehow managed to criminalize abortion, it would immediately be challenged in a District Court of a pro-choice Circuit, which would result in a temporary injunction against the law until the Supreme Court determined it was constitutional. If the Supreme Court determined the law was unconstitutional, the new law would immediately be nullified.

Anti-abortion legislation is the dream of many Americans, but the likelihood of it ever coming to fruition is very small as long as we have an active two-party (or more) legislature and vocal opposition among the electorate.