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Dear LtdGovt,

"However, Hunter goes one step further and explicitly promises to nominate judges who would say that a fetus is a human being,..."

In that whether or not the unborn child is a human being was a CRITICAL QUESTION left unanswered in Roe, focusing on the fact that sonograms give evidence to the eyes that the unborn child is actually a human being does indeed go directly to overturning Roe. But not instating a judicially-created ban on abortion.

The tryants in 1973 specifically stated that they would not overturn Texas' (and every other state's) laws on abortion if they could determine that unborn children were, in fact, human beings. They did NOT say that the logical step, if the humanity of unborn children were adequately demonstrated, was to overturn state laws that permitted abortion to one degree or other.

Keep in mind that abortion laws were pretty much a mixed bag in 1973, with most states still severely restricting the practice, but with some larger states having liberalized laws, ranging from California's abused "health exception" to New York's nearly-anything-goes. There was never a hint that the tyrants, had they been forced to acknowledge the humanity of unborn children, would have struck down liberal abortion laws in states like California and New York.

The logical result of justices who see sonograms and who affirm the humanity of unborn children, in terms of judicial rulings, would be to rule that one of the necessary premises of Roe was vitiated, and therefore, Roe must be vacated.

And, that would be the legal limit, as well, if the question before the Court were whether an anti-abortion statute violated Roe. It really WOULD be a case of judicial activism if the Court, without being asked, were to rule that because unborn children are human beings, that abortion must be banned.

That being said, once Roe was overturned, that might be a logical next step for those seeking a ban of abortion, to find some way to bring a case to the Court where the question might be whether or not liberal abortion laws impermissibly infringe on the rights of unborn human beings.

sitetest

They did NOT say that the logical step, if the humanity of unborn children were adequately demonstrated, was to overturn state laws that permitted abortion to one degree or other. There was never a hint that the tyrants, had they been forced to acknowledge the humanity of unborn children, would have struck down liberal abortion laws in states like California and New York.

They never do. But if you're familiar with law, you would know that judges always deal with the issues at hand, and with no more. It is quite possible that, had the justices recognized that unborn fetuses are humans, they would have declared those laws invalid. Of course, it is much easier to allow states to make that determination, but that's not what Duncan Hunter is advocating, is he?

The logical result of justices who see sonograms and who affirm the humanity of unborn children, in terms of judicial rulings, would be to rule that one of the necessary premises of Roe was vitiated, and therefore, Roe must be vacated.

Roe can be overturned on many other grounds. I doubt that C.J. Roberts will vacate Roe because he thinks that fetuses are human. And as I said before, I take it as significant that Hunter is not making the same promises that Bush made. Bush never said anything about abortion, except that he would have no litmus test. Hunter does have a litmus test.

That being said, once Roe was overturned, that might be a logical next step for those seeking a ban of abortion, to find some way to bring a case to the Court where the question might be whether or not liberal abortion laws impermissibly infringe on the rights of unborn human beings.

They don't. The Constitution does not afford equal protection to those not born. And it would be a blatant act of judicial activism that would probably result in a constitutional amendment being passed allowing abortion-on-demand. I'm sure you don't want that.

The logical result of justices who see sonograms and who affirm the humanity of unborn children, in terms of judicial rulings, would be to rule that one of the necessary premises of Roe was vitiated, and therefore, Roe must be vacated.

Precisely. If, for instance, we still had laws on the books about witches and how to determine if they were witches by tossing them in water to see if they float, the Court would strike those down as being based on faulty reasoning which was subsequently disproved by science. Therefore, they would strike it down, despite that such laws would have a stare decisis of many centuries.

If the supposed scientific premise is utterly flawed, any previous ruling of the Court can be overturned. That does not mean that justices who do so are turning into judicial activists. It was the Roe Court who turned themselves into medical experts and imposed their judgment based on very incomplete information.