"Article 3, Section 1 of the US Constitution: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish"....Section 2."The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;"
The Roe v. Wade US Supreme Court decision that legalized abortion came down to the opinion of nine justices who were never elected to that office by the people. Since 1973 and more recently, the federal judiciary has taken on an even more active role in deciding morality-type of cases (i.e. gay marriage). Again, judges who make up the federal benches such as the circuit, appellate and supreme courts, are never elected and serve for life.
Conventional wisdom tells us that in order to reverse these decisions such as legalizing, we must elect a president who when called upon, will nominate pro-life judges to the federal benches. With the recent GOP wave that rode into Washington this past election day, the GOP now controls both houses of the legislature. Therefore, a republican president and a republican legislature could erode Roe v Wade, in time. Probably, a long time.
As I read the constitution, especially the articles and sections I cited above, the pro-life movement, along with the republican wave, could erode Roe v Wade sooner or eliminate it altogether. Let me explain.
Since Congress makes all laws for the federal government, why can't Congress pass legislation that says that all federal courts are prohibited from hearing cases relating to abortion? The onus to pass abortion laws or pro life laws would be put on the states. In other words, if the state of New York wants to allow abortions, let them pass a law in their state without any oversight by the federal benches. Similarly, if West Virginia wants to outlaw abortions in their state, they can pass such a law in their state without any intervention from the federal courts. The bottom line is that no matter what a state does, the federal courts would be prohibited by law in hearing lawsuits brought by private citizens to the federal government. Suits would be limited to their states judiciaries. By the way, this would/could work with gay marriage as well.
If the GOP is pro life as they claim, they should be able to pass such a law. More than likely, President Obama would veto the law; however, with an almost supermajority in the house and coupled with the 54 GOP senators, I am certain that there would be some pro life democrats who would support such legislation that would override any veto.
- BELIEVE that the very basis of a moral society is its protection of life -- the unborn, born and those nearing the end of their life.
- ACT by telling your friends and neighbors that a good moral foundation for a government is essential.
- SERVE in your church, community or at home
So is passing a law forbidding the federal courts from hearing abortion or pro life cases really that easy? I say yes. Maybe I am naive to think that it would be that easy. Certainly those with law degrees and the like surely would have thought about this or even floated the idea.
However, I wonder if both sides of the abortion issue would want to explore this even if it were that easy because keeping the issue alive brings in money to their coffers, something both sides need in order to survive.