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Overruling Roe v. Wade -- i.e., finding that having post-conception choice is not a fundamental liberty within the meaning of the applicable provisions of the U.S. Constitution -- would NOT be tantamount to a finding that abortion is illegal. It merely would leave the matter to state legislatures, with some states outlawing it, others restricting it, and still others enacting very liberal abortion policies. For the "pro-life" movement, this would be a double-edged sword, so some extent -- since, if abortions are held to be a state matter, this would prevent them from enacting a federal statute banning or restricting abortion (which, I assume, is their next logical move). The only option left to the anti-choicers would be to try to amend the Constitution, but this is a very, VERY tall order.
As an aside, I think that in light of any hypothetical overturning of Roe v. Wade, passing a federal law which would prevent women from traveling out of state to obtain an abortion would be unconstitutional on at least two grounds -- it would interfere with a "state matter" and violate one's fundamental right to travel.
All the same, apart from Scalia and his echo Thomas, I think even conservative judges are unlikely to overrule Roe v. Wade. Although few people realize it, the implications of that decision extend beyond abortions. The basis for the majority's ruling was that there is a fundamental right to privacy regarding the decisions of a patient on a health matter, made in consultation with her doctor. If a court were to hold that states DO have the right to interfere with that decision, it would open the door for the government to dictate to doctors how to treat their patients, which procedures to use or not use -- policies not motivated by science or honest medicine and therefore disastrous for both. This will surely be front and center in the minds of the justices (again, other than Scalia and Thomas) considering any abortion "test case", and will weigh strongly against overruling the precedent. Even if Roe v. Wade is overruled, I think severe constraints will be written into the decision to leave as much of the medicine as possible in the hands of medical professionals.
John McCain is against Roe vs. Wade, and his running mate believes abortion is an atrocity and shares his commitment to overturning Roe vs. Wade. Given the fact that Bush feels the same way and has stacked the Supreme Court with anti-choice judges, and that McCain would most likely do the same if elected, will legal abortion become a thing of the past?
No. What will happen is:
1. The Supreme Court will stop creating laws, like Roe v Wade.
2. Roe v. Wade will be deemed un-Constitutional and will be labeled "judicial activists making a law illegally". If you read what each Branch of government is supposed to do in the US Constitution, you will see NOTHING allowing judges to do what they did in Roe v. Wade. Rove v. Wade is a judge-law, and thus should be eliminated.
3. The STATES will decide what types of abortions, what restrictions, etc will be imposed. So in Massachusetts (or Taxassachussetts, as it's commonly known) and Illinois, I bet abortion will be taxpayer-funded and very broad. In other states, abortion will be restricted to first trimester and in some in special cases only.
4. Abortion will remain legal, but it will be up to legislators and states to make decisions on it. No more judicial law-making on this.
This is the way it SHOULD be, the Constitutional way. Judges should NOT be making laws like the liberal Supremes did back in the 1960s and 1970s. That time is over, Americans don't want that anymore. They want elected officials to make laws, NOT judges.
Fun2Day: I'm sorry, but have you actually read the decision you are talking about? Your characterization that judicial "activists" supposedly "illegally made law" is facile and wrong. Judges interpret the law and apply it to specific factual situations; they also make sure that no laws run afoul of the US Constitution -- which preempts all the other laws. Anytime a judge finds that a law violates the Constitution or interprets it according to the facts, people who don't like his decision can label him an "activist" and accuse him of "making law". Scalia -- the ultraconservative judge who often rants about judicial activism -- can also be labeled an "activist": after all, where in the Constitution does it say that a judge can invalidate the use of a technological device to see through walls? But then, what is a warrantless search, if not looking into your home without permission, by whatever means?
There are significant constraints on elected officials' ability to make law -- constraints outlined in the Constitution -- and it's up to judges to interpret the limits of those constraints. This is called "checks and balances". Does the term ring a bell? The judges act as a check on the legislature -- and the founders were acutely aware of the monstrosity that the pure Rule of the Mob, Athenian-style, can engender. If Americans want legislators to have unlimited power to pass whatever laws they want (though, with all due respect, I doubt you speak for all Americans -- you certainly don't speak for me), then Americans have to amend the Constitution and eliminate that pesky, unpopular judicial branch altogether. Just don't complain when legislators start passing totally insane laws, with no legal recourse against them whatsoever.
The common pundit-fueled complaint against "judges making law" has no basis in jurisprudence itself. And, it's a myth that before the 1960's, judges sat back and let "elected officials" stone people for adultery and undertake other popular barbarities -- they did not. Judges always pissed people off by putting brakes on unconstitutional laws (however popularly supported). Alas, the biggest problem with "strict constructionism" isn't that it would be fatal to the Constitution itself -- though it is. The problem isn't that "strict constructionism" would change the status of the Constitution from that of (mostly) the Law of the Land to that of (mostly) an historical artifact -- though it would. The problem isn't that "strict constructionism" recreates the fundamental flaw that all theoretical utopias share, namely denial in the face of the inevitability of change -- though it does that, too. No, the problem is that "strict constructionism" simply doesn't exist. I've read Supreme Court opinions on various constitutional issues extensively, and I believe there was only Justice who could pretend to be at least somewhat of a strict constructionist -- Hugo Black. All other self-professed "strict constructionists" -- beginning with Antonin Scalia -- aren't strict constructionists at all; they construe the Constitution strictly only if it fits their political beliefs, but are more than willing to extrapolate as well.
Well, as long as the government can't force me to donate my kidneys, I'm fine.
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