I think those precedents (the Slaughter-House Cases: no federal privileges or immunities protect butchers from local sanitation ordinance relegating them to one area in city) were decided correctly.
~Max
States or feds? Depends on your initial POV.
If you believe abortion is wrong…
…And crying “states rights!” will get more laws passed to prohibit or criminalize it, you are for States Rights.
…But if crying “states rights!” will get more laws passed to allow it, you will be for the federal laws to take precedence.
Conversely, if you believe abortion is right…
If “democracy” means stripping away half the population of their civil rights, subjecting them to humiliation, sickness, suffering and death; then of what value is democracy? This isn’t an argument for democracy, it’s an argument for rejecting democracy as evil and tyrannical. An exercise in bigotry and sadism.
I’m not talking about the ban of any particular procedure, I’m talking about a blanket ban on any and all means of a pregnant person divesting themselves of an undesireable foetus.
I suspect we do.
My own view is that handling this issue on a state by state basis was intended to be temporary or merely a contingency. In practice, it creates too much disunity. Roe v. Wade provided a unifying national standard, it was recognized across state lines and broadly accepted as the law of the land. Now, we have a system in which some states permit the practice while others treat it as murder, or at least threaten to do so. This creates the deeply troubling situation where a person can be considered a criminal in one state for exercising a legal right in another. Such a system is inherently unstable and, ultimately, oppressive. Such issues causing such divisions are national by inherit default.
Having differing opinions of the scope of the community does not mean one doesn’t believe in the value of Democracy.
On the spectrum of person - family - neighborhood - town - county - state - country (to pick some arbitrary divisions of ‘community’), each point is going to impose some amount of conformity back down the line, as a natural consequence of rolling up all the sub-units into the next larger unit of community.
Claiming that a particular opinion about the application of state vs. federal jurisdiction is tantamount to disbelief in Democracy is poisoning the well.
Think about it like this. If a government can force someone to remain pregnant against their will, then it can also force them to have an abortion against their will. If the pregnant person’s autonomy is up for grabs, then so is the fetus’s or anyone else’s.
That’s too dangerous IMO to be left to the states. It means that a fetus is granted more rights than a born person. After all, you can’t force someone else to donate a kidney or give a blood transfusion, even if not doing so would lead to your death. By giving a fetus those sort of rights (to remain inside the pregnant person against their will), it makes the fetus more of a person, or conversely, it makes all born men and women lesser people. If you want to justify that then you also have to justify black people being lesser or gay people being lesser. That is an affront to the foundational human right to life, liberty, and the pursuit of happiness.
That’s fine, but again, because this issue has been returned to the states, we’re now seeing legislators and voters instituting laws which give the unborn child primacy over the mother’s body autonomy in most, if not all, cases.
By insisting and supporting that abortion access was not covered by the Constitution, and that it needed to be decided at the state level, this is an absolutely predictable result. This is what you get.
The Slaughter-House Cases were just one example. Another pertinent to my interest as a pro-firearms advocate was Presser v. Illinois, where the SC denied that the 14th Amendment had incorporated the Second Amendment to the states.
I used the term “revanchist” quite deliberately; evidently the Court felt that the Reconstruction-era federal government had aggrandized too much power to itself and was determined to restore a pre-Civil War concept of States Rights to the greatest possible degree.
That fact makes the cries of "Why didn’t the Democrats protect abortion rights (bodily autonomy rights) with a federal law… that could be reversed at will. Since relying on any SCotUS decision has proved to be a fool’s errand the only option is a Constitutional amendment . . . and I can’t imagine anyone being able to write one that has the broad scope of the amendments in the Bill of Rights.
In terms of Constitutional rights, how would you distinguish between state laws banning abortion, and a state law forbidding women from being clothed in public between Memorial Day and Labor Day? Can’t see how such a law would be unconstitutional, if a state law forbidding women to make their own choices re pregnancy isn’t unconstitutional.
As I’ve had occasion to remark before, our system of government seems to have embedded principles that appear to be inherently in conflict on two fronts:
The first is the conflict between the theory of natural rights, which is ultimately libertarian, versus the police power of the state— the general authority of government to regulate, restrict or prohibit things via due process of law— which is authoritarian. It is all too easy to imagine a government which while not gratuitously cruel or despotic would be absolutist: a government which in principle could do absolutely anything in the name of the greater good; “The Ones Who Walk Away from Omelas” comes to mind as an example.
The second conflict is between majority rule versus protection of minority rights. Nowhere was this more glaringly demonstrated than in the post-Civil War struggle over the status of the newly emancipated slaves. It was the overwhelming sentiment of the southern white majority that African-Americans should be accorded “no rights which the white man was bound to respect,” in the infamous words of the Scott v. Sandford decision. The only way the freedmen enjoyed anything close to equal rights during Reconstruction was due to the overweening power of Federal troops, acting in manifest opposition to the will of the Southern white majority. And while the Civil Rights movement of the 20th century addressed a long-overdue call for justice and common decency, the nagging question remained of just what positive protections and restitutions were appropriate, perhaps even to the extent of maintaining African-Americans in a permanent protected class in flat contradiction to the ideal of a color blind society.
It’s perhaps not waffling or hypocrisy to suggest that there really is a tension between ideals that we simply don’t know how to fully reconcile.
Second time this week someone mentioned this story, so I just read it. Oof. What a story. What an accurate reflection of reality.
But I agree with Presser v. Illinois, too. In that case, the Supreme Court held that a state law prohibiting people from organizing militias and marching without the governor’s assent did not violate the Privileges or Immunities clause. That holding is still good law; McDonald v. Chicago only overruled the separate holding that the due process clause did not apply.
In dicta, the Presser Court noted that the Privileges or Immunities clause does prohibit states from restricting the privilege of U.S. citizens to peacibly assemble to petition the government (despite the First Amendment itself only restricting Congress). On a separate issue, the Court held that the Second Amendment itself only restricted Congress. In dicta on the Second Amendment issue, the Court noted that the state prohibition on unauthorized organization and marching did not violate the people’s right to keep and bear arms. The Court also held that the Illinois Military Code being examined did not violate the Supremacy clause by interfering with the federal militia (i.e. all men of fighting age), because it contained a carveout. The Court did not explicitly decide whether the Privileges or Immunities clause extends to any Second Amendment privilege, but their rationale for the First Amendment privilege to peacibly assemble arguably applies with equal force. The dicta strongly suggests that the holding on the Privileges or Immunities clause is compatible with an incorporated Second Amendment right.
~Max
Since the whole law in question was about banning what modern statutes term “armed association”, that would seem to deny any fundamental liberty to “bear” arms.
I agree that Presser v. Illinois was an absolute masterpiece of legal hairsplitting, of paying lip service to the 2nd Amendment while upholding virtually any state restriction on ownership or carry. But to get back on topic, anyone claiming that it’s a " privilege or immunity" to seek an abortion is going to find precedents mighty thin on the ground.
Such an act would likely be ultra vires. A law forbidding anyone from being clothed in public would be a very weird exercise of police power; this law only regulates the behavior of women, so it implicates the equal protection clause. Class legislation requires class-specific justification, and I won’t assume such justification exists or is valid today. But cf. Muller v. Oregon, 208 U.S. 412 (1908) (upholding sex-based labor restrictions by finding a ‘real and substantial’ relationship between then-accepted notions of woman’s physical structure and the state’s interest in protecting the ‘health of the mother’), overruled on due process grounds by Adkins v. Children’s Hospital, 261 U.S. 525 (1923), overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). There could be other violations depending on whether or how the law is enforced.
~Max
Heller cites Presser with approval:
Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” Id., at 264–265. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups.
~Max
Not to mention women dying from unmanaged misscarriages or being prosecuted for seeking abortion care or miscarrying at home. Being threatened with virtually held prisoner in their own state when pregnant. This all flies in the face of freedom of any sort.
OK then, laws forbidding anyone to wear clothes in public between Memorial Day and Labor Day, to avoid the hairsplitting distinctions.
Would there be accommodations for people whose exercise of religion prohibits appearing nude in public? Or federal officials who must wear uniforms in public while performing official duties (i.e. postal workers, law enforcement, military)? Or citizens who have medical conditions which make it dangerous to appear in the summer sun without clothes, who need to appear in public to exercise a federal right (such as attending a townhall, or federal court)?
~Max