Let’s go ahead an assume that, during the trump/pence administration, not just one, but two or maybe even more justices get named to the Suprmee Court, swaying the balance far to the right.
In this circumstance, Roe v Wade gets challenged, (In that a state makes an anti-abortion law that the precedent of RVW should void) and overturned.
This means that abortion goes back to the states. If the voters in Kansas want to restrict or even completely eliminate abortions in their state, they are now free to pass a law to that effect.
Now, my question is to the pro-life crowd. Every time I have heard about a potential overturn of RVW, I have heard that it would become a states matter. I am curious to know if those in the pro-life community will be happy with that. Will you be okay sitting in Kansas, knowing that there are no legal and safe abortions available to women in your state, but also knowing that people are leaving your state to get this medical procedure done. Will you be able to stand that California is performing abortions?
So, will this be left as a states rights issue, or will the pro-life movement push for a national ban as well?
I think that when you hear it will revert to the states, that’s more of a statement of fact rather than a position statement by the pro-Life group. If I really thought abortion was murder, I would not be content to allow it to be a matter for the states to decide, just like I wouldn’t want slavery to be something the states decide.
Fortunately, for those of us who are pro-choice, there isn’t a chance that such an amendment would pass. Most Americans don’t want abortion to be illegal across the board. Abortion is one of those things for the Republicans that can be likened to the dog chasing the car-- what is that dog going to do when he finally catches the car?
Who controls both houses of congress, the president, and soon the supreme Court?
Is there a reason why it would have to be an amendment? Wouldn’t just regular laws do? Is there any particular reason why the current makeup of our govt could not pass such restrictions on a national level?
The Supreme Court will be no more ready to overturn Roe than it was when Scalia was alive. Certainly he would have voted for such an overturn. Should a liberal retire or die, that’s another story.
I cannot envision the anti-choice crowd being satisfied with the states having the option to choose, they will not rest until it is illegal nationwide.
… Plus, you’d have to get the law through the Senate. I’m not sure you could get 51 Republican Senators to vote for such a law, and I’m certain you couldn’t get enough Democrats to support such a law and not filibuster it. The thing about getting these majorities in Congress, especially in the Senate, is that it’s next to impossible to have > 50% far-right (or far-left) Congresscritters. Some have to be “moderate”, or the other party gets voted in.
I have two separate opinions on Roe vs. Wade- a legal opinion and a moral opinion. From a purely legal standpoint, I consider it a bullshit decision based on absolutely NOTHING in the Constitution.
Morally, I regard abortion as evil.
If a majority led by Antonin Scalia had ruled that the Constitution grants every fetus a right to life, I would regard that as a bullshit decision, too.
The Constitution says and implies NOTHING about abortion. The proper legal decision would have been, “Fight it out in the legislatures.”
OBVIOUSLY, if abortion were a matter for legislation, I would continue to oppose it.
I did not know that murder was not illegal at the federal level.
I have some concern that the filibuster may not make it into the next senate, for largely those sorts of reasons. I will agree that it would be hard to get 50 senators (the tie breaker is pence… I think I know how he would vote.), but I don’t know that it would be impossible. any R senator that voted against would get primaried to hell next go around.
And, if by hook or by crook the GOP did get legislation passed outlawing abortion in the US, how long would that party keep its control of Congress? Things are not static, and people react to Congress or the President getting out of hand.
Perhaps the pro-Life crowd would go for a “personhood” decision by the SCOTUS. Declare a fetus a “person”, and then you can go the 14th amendment route. And that decision would have about as much basis in the constitution as Roe v Wade had. Suddenly, penumbras wouldn’t look so appealing…
…and in polling earlier this year Pew found 38% of republicans support abortion being legal in all or most cases. They don’t break down the Independents into D/R leaners but there the breakdown is 60% in the abortion being legal in all or most cases. For Democrats 70% fall into that group leaving 30% for the illegal in all/most cases contingent.
It’s not a strictly partisan issue despite the typical attempts to ram the square peg into donkey or elephant shaped holes. Right now, the underlying internal splits don’t matter. It’s safe for both sides politicians to give lip service to their majorities and let only true believers fight uphill in the face of a SCOTUS decision. That changes if the decision gets overturned and they need to consider their actual personal values and the values of the voters they need to win reelection.
I’m sure there are some laws about murdering federal officials, or if there is something (like crossing state lines) that brings the feds into play, but when Joe kills David in IL, it’s a matter for IL law. I believe the feds would get involved as a civil rights issue if, for instance, Joe was black and he killed David because David was white (or vice versa). But there has to some reason, other than just person A killed person B, for the feds to be involved. Hence the personhood amendment I mentioned, above.
That math is almost certainly going to be tougher on Senate Democrats post-2018, though. While unlikely, Republicans picking up 9 Senate seats in red-leaning or purple states is no longer unthinkable.
You stated exactly what the hook would be to make it at least a partial fed matter - interstate commerce. If abortion were illegal in some states and legal in others, Congress could potentially try to criminalize traveling across state lines for the purpose of obtaining an abortion. This would likely be very hard to enforce by itself, but they could also impose a requirement on doctors/clinics to verify the address and state residency of those obtaining an abortion as a prevention mechanism.
Since traveling out-of-state for a lot of unexpectedly pregnant women would already be cost or logistically-prohibitive, this could be an added deterrent to everyone other than the wealthy who could get around it or go overseas for the abortion.
I’m no expert on abortion pills, but aren’t they at the point now where having to travel somewhere to get an abortion is becoming less and less of an issue?
In my opinion, Congress has no power to legislate a national ban, despite the vastly expanded Commerce Clause powers the left wing has handed to Congress over the past half-century.
So I don’t see a route to a national ban that’s both principled as to federalism and realistic. (That is: a constitutional amendment).
So I’d be forced to conclude that the best remaining move was state-level ban efforts.
Of course, since the left wing has also granted and normalized broad powers to the judiciary (how Roe came to be in the first place!) it would be sauce for the goose to push for a constitutional ban, perhaps grounded in the right to life mentioned in the Fifth and Fourteenth Amendments being extended to the unborn.
But I also regard that as a terrible idea, and I’d oppose it on the same grounds I oppose Roe: it’s a poor method of judicial construction.
To be fair, it’s been a slowly, but steadily increasing trend since Marbury v. Madison. Inventing (or finding “implied”) constitutional powers or rights is a seldom-used but established Supreme Court tradition.
Bricker, just curious - if the Mann Act is within federal jurisdiction (banning transportation of a woman across state lines for an immoral purpose), why wouldn’t Congresd have the power to make it an offence for a woman to cross a state line for the purpose of an abortion, if Congress deems that to be an immoral purpose?
Via regulations on medical procedures. The FDA can ban various drugs, and Congress can mandate that they ban a drug they (Congress) don’t like. Same for a procedure.
I agree with you on that. I would be happy to see it overturned just because I don’t like judicial activism no matter what the topic at hand is. However, I don’t think it would change much in a practical sense. Most states would still keep it legal and almost anyone could travel to one of them if they needed one.
However, there is a widespread claim that no one is pro-abortion. That isn’t true because I exist. I am completely for it and think there should be many more of them. That isn’t based on any of the typical pro-choice arguments. Most of those are made up bullshit too. It is just that there are too many people already and you have to cull the herd somehow starting with the volunteers or their parental proxies. I realize that my slogans won’t be on any Planned Parenthood pamphlets anytime soon. I don’t think it is that moral either but sometimes you have to choose between the lesser of two evils.
Personally, I don’t like Roe. I’m about as pro-Choice as you can get, but I think the decision involved too much reaching. However… We’re 40+ years in now, and I think it’s too embedded into our legal system to just throw it out. Better to leave it as is, and move on with the hope that we won’t make a similar mistake with some other issue.
