I don't think the Supreme Court can do that. Check and see if the SC has ever made any laws.
I bet what's going to happen is the SC will be forced to decide when life begins. They're going to have to if more and more states want to prohibit abortion "because it robs the unborn of it's Constitutional rights."
Most of you probly know that only about 7% of all abortions are performed in the 3rd trimester. And I don't know but it's likely most of that 7% are performed bc the unborns are already dead, certain to die from defective vital organs, have unsustainable defects, OR, the pregnancy is killing the mother.
Still a matter between the woman and her doctor, period. Just like SC said vaccines are between you and your healthcare provider, so is abortion. No state should have the right to create laws that dictate what you and your doctor can and can't do to improve your health.
This is a simplistic response, because I don't want to do the legal research to explain it fully, and you all sure don't want to read that if I did. Except for the 10th Amendment portion of my discussion, this is all coming straight out of my head.
(1) SCOTUS decides whether state laws are constitutional. Let's say they decide that denying the right to an abortion is unconstitutional. That decision applies to the states. Now the right to an abortion is,
in effect, the law of the land. It is not the law in actuality because laws are statutes and are passed by Congress.
(2) Now comes the 10th Amendment to the US Constitution:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The amendment provides no new powers or rights to the states, but rather
preserves their authority in all matters not specifically granted to the federal government nor explicitly forbidden to the states. https://en.wikipedia.org/wiki/United_States_Bill_of_Rights#Second_Amendment
If Congress passes a law stating that marijuana is a forbidden substance, for example, then the states can't legalize it. But some have! How? No one has contested what the states have done, or, presumably sent the feds in to arrest people for having personal use amounts of marijuana in their possession. So the feds appear to be ignoring this. Amounts greater than for personal use are evidence of possession with intent to distribute. So Sally May can get her edibles from the local pot shop. But Leroy Jenkins, who sells pot on his own, and has 10 kilos in his possession, will be charged with, among other things, intent to distribute, which is against the federal law too but not ignored. If Leroy pays Sally May to store the pot in her apartment for him, Sally May will be on the hook too, but not for her personal use amount of edibles (hopefully).
The DEA or FBI can swoop down on the pot shops or even the people, and arrest everybody, and a huge brouhaha will result. The feds have not given up their right to prosecute the illegal use of marijuana. The DEA and the FBI have bigger fish to fry.
(3) If Congress had passed a law (and they could still do so) making abortion legal in the US, the states would have to comply with it. A lot of lawsuits would arise. The federal courts would handle it, and unless SCOTUS decided to hear a case that the federal courts had decided, then the federal courts decisions would stand. SCOTUS hears cases at their discretion.
(4) If SCOTUS hears the appeal, after it has been through the lower courts, then it can declare that the new abortion law is, or isn't, unconstitutional. SCOTUS recently decided that the decision in
Roe v. Wade is not covered in the Constitution. Because of that, and because there is no federal statute saying that abortion is legal in the US, the states have the right to legislate abortion under the 10th Amendment.
(5) If Congress, in the future, passes a law legalizing abortion, then that will be the actual law of the land. Or should be, merely because the recent case decided abortion rights are not conferred by the Constitution, and now that Congress has passed a law saying abortion in legal, the states would no longer have the right to pass laws about it. The precedent of the recent case is that Roe v. Wade is not covered by the Constitution. If a law isn't unconstitutional, which abortion is not, then the feds can legislate and the states will have to follow that.
(6) What happens next will be a lot of lawsuits filed by states in the federal courts. The fact is, you can never predict what the fallout will be. But it seems to me, just an ordinary person, that if Congress passed a law legalizing abortion, it would stand. Again, this is written in stone. And SCOTUS may wait until lots of cases have been decided, with the federal appeals courts disagreeing on the resolution, before it hears a case on this. Or it may never take up the issue at all.
The words in statutes
Lets talk about statutes, all of them - both state and federal. If you read one, that's not all there is. First, the meaning of the specific words in the statute can be litigated. In one of my cases, the word "Kindergarten" did not include private kindergartens, in a state statue about drug dealing within a certain distance from a school. That was my argument. There had been no cases decided on this issue in my state, so I drew on dictionary definitions and cases that had been decided in other states.
It's not just word definitions and the actions of other states in situations like this that matter. All sorts of history in the writing of a statue and beyond, also counts in a legal argument. Often it boils down to arguing over what the lawmakers intended to mean. This means the lawyers involved spend a lot of time doing legal research on precedent and on the history of the statute, etc. This includes researching the same stuff from other states, if necessary.
This can happen with any statutory litigation. I won. So my guy was "not guilty" because he didn't break the law. The prosecutor could not prove beyond a reasonable doubt, that my guy had committed all the elements of the crime because private kindergartens were not part of the definition of schools in the statute.
Immediately, the state Legislature changed the statute. I was very glad about that.
(Keep in mind that a defense attorney's duty is to make sure the government (prosecutor) proves all elements of a crime beyond a reasonable doubt. A defense attorney cannot make it personal and decide the guy is guilty, for example, and not give the guy the ethical and comprehensive representation he deserves under the law and under the code of ethics for attorneys. In my case with the kindergarten, there were lots of lawyers who thought I would lose. I could have, but I didn't. I was really glad because it was my first appellate case and I would for public counsel services in my state, which represents defendants who cannot afford to hire a lawyer.)
In another case, not one of mine, the statute was on point. The defendant shot the plaintiff who was walking by his house on the sidewalk. His insurance covered it under legal precedent which the courts for many decades had agreed upon. The plaintiff won in the trial court. The decision was appealed, and the appellate court changed their minds, and now the insurance did not cover the shooting. So the plaintiff lost in the end, and the lawyers were shocked.
Now the Shockerooni
Although I full agreed with the conclusion in
Roe v. Wade, I thought it was contrived, that the court had overreached. As I analyzed the case (in law school), I was amazed at the gobbledygook that had resulted in the case's conclusion. It seemed to me that the argument was really convoluted, and did not hold together in a logical manner. I still think that.
What should have happened is that Congress should have passed a law legalizing abortion, and taken the issue away from the states, before this latest debacle.
