Abortion Redux

 

Legal scholars, please join in.  I am no legal scholar nor even a lawyer.  I don’t even play one on TV.  But I keep hearing from Democrats and Republicans alike that they can codify some aspect of abortion (the Dems making it legal, the Republicans, restricting it) in federal law.  Where is there constitutional authority for this legislation?  It’s not anything to do with interstate trade as people can freely cross state borders seeking refuge on either side of the debate.  If it’s equal protection, the life of the child cannot be ignored and this also leads down the slippery slope of viability and science.  Quite frankly, I can’t see the authority anywhere.  SCOTUS returned the issue to the states.  On what grounds would they assert it should again be a federal issue?

I know that the Democrats want to overplay this hand, but to suggest that they can codify infanticide nationally is a great leap.  An activist court did it in such a convoluted manner it was overturned.  Getting this done again nationally, for as long as it may last before being overturned again, will likely impose restrictions on current liberal states.  In the meantime, restrictive states will probably sue and refuse to comply.

Abortion: the political gift that keeps on giving for Democrats.  In the meantime, 75,000,000 Americans never lived to take their first breath.

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  1. Judge Mental Member
    Judge Mental
    @JudgeMental

    Also not a lawyer, but I think you have the legality and constitutionality of it right.  If only that sort of thing mattered.  Congress stopped caring about those little details before most of us were born.  I suspect they would justify it with the commerce clause, as the number of people affect commerce and government spending, but it is unlikely that the subject will ever even be raised.

    • #1
  2. Ekosj Member
    Ekosj
    @Ekosj

    Re:”If it’s equal protection, the life of the child cannot be ignored…”

    Oh, but It routinely is in this one instance.   This is the one and only instance where, if  there is a question about whether Constitutional protections apply, the answer is “No.”  

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  3. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    While I am a lawyer, I am not a constitutional scholar.  (I think Hoyacon is a constitutional scholar.)  [Edit.  Jerry Giordano is also a constitutional scholar!]  I note that a national prohibition on Partial Birth Abortion was upheld in 2007 in Gonzales v. Carhart, 550 U.S. 124.

    I think that there would be a national consensus for a federal statute that says that (1) abortion is legal at least in the first trimester in cases of rape and incest, (2) no state may prohibit or punish people traveling out of state for an abortion, and (3) abortion is legal for the life of the mother, and the serious danger to physical health of the mother.  

    States could be more permissive than this statute, but we are one Texas rape victim, or one Texas miscarriage death away from this becoming a cause celebre.  “States rights” got rolled in 1964 after too many people got attached by dogs and fire hoses.  The same can happen with abortion.

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  4. EJHill+ Podcaster
    EJHill+
    @EJHill

    John Yoo has spoken on this many times since Dobbs. If Congress were to try to codify Roe he believes the Court would overturn that on based on City of Boerne v Flores.

    • #4
  5. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Doug, first of all, the Dobbs decision did not “return[] the issue to the states.”  Rather, it held that nothing in the federal Constitution prevents the states from adopting laws restricting abortion.

    On your main point, questioning the power of the federal government to regulate abortion, I think that you have a good argument under an originalist interpretation, at least in many circumstances.  The basis for federal power to regulate abortion is the Commerce Clause, which has been interpreted quite expansively since the early 1940s.  The main SCOTUS case on the issue was Wickard v. Filburn in 1942.

    The Commerce Clause does give Congress the power to regulate interstate commerce, so the question is the determination of the types of activities that constitute “interstate commerce.”  An early case, Gibbons v. Ogden in 1824, held that this included the power to regulate interstate navigation.  (The specific issue in the case was a New York law prohibiting the operation of steamboat services between New York and New Jersey except to certain licensees, which was invalidated in light of a license granted by the federal government under a federal law.)

    Later in the 19th Century, SCOTUS generally ruled that Congress could regulate activities like interstate railroads, but not activities like production, manufacturing, or mining.  The case law drew a distinction between activities having “direct” and “indirect” effects on interstate commerce, a line that was difficult to draw in some instances.  This eventually led to the Wickard decision.

    There is an excellent discussion of this issue in a 1995 SCOTUS decision, US v. Lopez (here), by Chief Justice Rehnquist.  He summarized the post-Wickard Commerce Clause jurisprudence as granting Congress the power to:

    1. Regulate the use of the channels of interstate commerce.  (An example would be prohibition on certain types of interstate commerce, such as illegal drugs or transportation of women for the purpose of prostitution.)
    2. Regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even if the threat is purely intrastate.  (Examples include theft of interstate shipments, or safety standards for vehicles used in interstate commerce.)
    3. Regulate activities having a substantial relation to interstate commerce or which substantially affect interstate commerce.

    The third category is the doctrine that allows expansive federal regulation, and derives from the Wickard decision.  This category is the source of Congressional power to regulate in a wide variety of areas:

    • Motor vehicle safety standards
    • Food and drug regulations
    • Banking regulations
    • Alcohol, tobacco, and firearms laws
    • Civil rights laws

    The 1964 Civil Rights Act was challenged right away, leading to twin decisions in 1964 upholding the Act under the Commerce Power.  One decision was Heart of Atlanta Motel, involving a motel that served interstate customers.  The other decision was Ollie’s Barbecue (technically, Katzenbach v. McClung — McClung was the Ollie who ran the barbecue restaurant).  It was pretty much a local business, though it had occasional interstate customers, and bought half of its food from outside Alabama, though from local distributors.

    I must admit that the Wickard and Ollie’s Barbecue cases are a bit of a joke.  I mean, the idea of Ollie’s Barbecue is that if you buy your ketchup from a local distributor, but it’s manufactured out of state, then every aspect of your business is subject to federal regulation. 

    Chief Justice Rehnquist’s decision in US v. Lopez put some limits on the Wickard doctrine, invalidating a federal law that banned gun possession within a certain radius of a school, and disapproving the application of the “substantially affects commerce” rule when applied to noncommercial activity (which seems to mean non-economic activity).

    FYI, I’m probably unusually familiar with this area of the law, even for a lawyer, though it’s been a long time.  My practice over the past 24 years has not involved Commerce Clause issues.  Once upon a time, though, I wrote my law review note on Chief Justice Rehnquist’s opinion in US v. Lopez.  

    I was also fortunate to have taken a Supreme Court history class taught by Chief Justice Rehnquist himself, back around 1997.  I even got to sit in my usual place in the front row — by law school, I was paying my own way, so I wasn’t hiding in the back of the room.  His course covered SCOTUS through the Warren Court (1969).

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  6. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    With the preceding as background, applying current Commerce Clause jurisprudence to federal regulation of abortion: the Wickard rule, even as narrowed somewhat by Lopez, would allow regulation of abortion as commercial or economic activity that substantially affects interstate commerce.

    Gary’s comment #3 is correct about the SCOTUS decision in Gonzales v. Carhart upheld the federal ban on partial birth abortion, though the Commerce Clause issue was not specifically litigated.  (It was mentioned in the majority opinion, in passing, and the concurrence by Justice Thomas noted that this question was not before the Court.)

    • #6
  7. Columbo Member
    Columbo
    @Columbo

    Does a heartbeat qualify as proof of a “second” body? Clearly, the unfeeling chant of “My body, my choice” is destroyed by the clear scientific evidence of a “second body” within. This issue is about life, not politics. Even the euphemism of “partial birth abortion” is a lie. It is a birth, regardless of how fully a ‘doctor’ has pulled the child from the womb or not. This issue, like slavery once was, is about life for all and its unconditional value.

    Simple morality dictates that unless and until someone can prove the unborn human is not alive, we must give it the benefit of the doubt and assume it is (alive). And, thus, it should be entitled to life, liberty and the pursuit of happiness. … President Ronald Reagan

    We are a nation of idealists, yet today there is a wound in our national conscience. America will never be whole as long as the right to life granted by our Creator is denied to the unborn. For the rest of my time, I shall do what I can to see that this wound is one day healed. … President Ronald Reagan [link]

     

     

     

    • #7
  8. David C. Broussard Coolidge
    David C. Broussard
    @Dbroussa

    Gary Robbins (View Comment):

    I think that there would be a national consensus for a federal statute that says that (1) abortion is legal at least in the first trimester in cases of rape and incest, (2) no state may prohibit or punish people traveling out of state for an abortion, and (3) abortion is legal for the life of the mother, and the serious danger to physical health of the mother.

    This isn’t an issue that is easily decided because Roe and Casey prevented any discussion on the topic.  There likely is a national consensus to allow abortions for most reasons up to some point (perhaps 12-15 weeks), and then to limit it after that point.  That shouldn’t be a national law, but rather at each state.  The idea that we have a national consensus is what caused this issue in the first place.  By keeping it at the state level it allows proponents of either view to convince people of the correctness of their position and enact change.  I don’t even think that there is a need for a law prohibiting travel restrictions because I’m fairly certain those are patently unconstitutional.

    States could be more permissive than this statute, but we are one Texas rape victim, or one Texas miscarriage death away from this becoming a cause celebre. “States rights” got rolled in 1964 after too many people got attached by dogs and fire hoses. The same can happen with abortion.

    You really think this isn’t a case celebre already?  The Left cannot abide by any restrictions on abortion, and in a perfect world they are correct.  As I saw in another post, if people were angels then there wouldn’t be a need for gov’t.  My wife hates any restrictions on abortion because she feels it should be between a woman and her doctor.  I tell her, that’s great until a woman and a doctor decide that they want to abort a child with Down’s Syndrome, or which is a girl (or a boy).  Thus we need restrictions which makes this much more complex.

    • #8
  9. Columbo Member
    Columbo
    @Columbo

    David C. Broussard (View Comment):

    Gary Robbins (View Comment):

    I think that there would be a national consensus for a federal statute that says that (1) abortion is legal at least in the first trimester in cases of rape and incest, (2) no state may prohibit or punish people traveling out of state for an abortion, and (3) abortion is legal for the life of the mother, and the serious danger to physical health of the mother.

    This isn’t an issue that is easily decided because Roe and Casey prevented any discussion on the topic. There likely is a national consensus to allow abortions for most reasons up to some point (perhaps 12-15 weeks), and then to limit it after that point. That shouldn’t be a national law, but rather at each state. The idea that we have a national consensus is what caused this issue in the first place. By keeping it at the state level it allows proponents of either view to convince people of the correctness of their position and enact change. I don’t even think that there is a need for a law prohibiting travel restrictions because I’m fairly certain those are patently unconstitutional.

    States could be more permissive than this statute, but we are one Texas rape victim, or one Texas miscarriage death away from this becoming a cause celebre. “States rights” got rolled in 1964 after too many people got attached by dogs and fire hoses. The same can happen with abortion.

    You really think this isn’t a case celebre already? The Left cannot abide by any restrictions on abortion, and in a perfect world they are correct. As I saw in another post, if people were angels then there wouldn’t be a need for gov’t. My wife hates any restrictions on abortion because she feels it should be between a woman and her doctor. I tell her, that’s great until a woman and a doctor decide that they want to abort a child with Down’s Syndrome, or which is a girl (or a boy). Thus we need restrictions which makes this much more complex.

    It is clearly a cause celebre already. An example is the win in the special election in the NY-19 district. Democrat Pat Ryan won by largely focusing on “abortion rights” as a central campaign theme. [link]

     

    • #9
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