U.S. Constitution and International law
tushnet at LAW.GEORGETOWN.EDU
Thu Oct 17 13:54:59 PDT 2002
A standard hypo for exploring Mark Scarberry's question is this:
Congress enacts a statute depriving the Supreme Court and lower federal
courts of jurisdiction over abortion cases (you have to work hard to get
the definitions here right). A state enacts a law criminalizing early
abortions (unquestionably inconsistent with Roe). A defendant asserts
the unconstitutionality of the statute as a defense to a prosecution.
Must the state court follow Roe, or may it make its own inquiry into the
underlying constitutional question? You can play this back to the stage
of the prosecutor deciding whether to prosecute under the new statute,
or even further back to the stage of a legislator deciding how to vote
on the proposed statute.
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