Every once in a while over the years, I would hear someone opine that Roe v. Wade was a bad decision on legal grounds, regardless of what one believed about abortion.
I don’t have enough legal kowledge, nor have I studied the issue enough, to know whether such arguments were/are valid. But it has never seemed to me clear or obvious that the Constitution, as it now stands, says anything about abortion rights one way or the other, and so if you want to guarantee abortion rights, it seems to me (perhaps naively) that it would be safer to actually legislate those rights than to try to find them implicit in the Constitution.
Not a lawyer but the 14th Amendment feels like a good place to start. But you’re right that this would likely need to be applied after the fact to overrule a state’s law or ruling. I don’t think laws need to have a constitutional foundation so long as they don’t contradict it.
The distinction between the SCOTUS ruling on a federal law protecting abortion vs. a state law prohibiting it may have mattered if the balance of the court was in Roberts’ favor.
The majority didn’t have to rule directly on whether abortion was a constitutional right but they did. If Roberts view (that it should still be a right, but that the existing precedent should have been weakened) he may have had an issue with finding a middle ground position with a federal law, where he would also have to argue that the federal law steps outside federal bounds for the 14th amendment’s enforcement powers. Which would be an extra tricky line for him to walk because he generally doesn’t want to have the court setting standards for how congress’s powers should be limited unless he can tie them directly to some other limit (i.e. if congress decides to enforce X right with Y legislation, he doesn’t just want to say Y legislation is too broad, he wants to specifically say it violates equal protection based on some ostensibly objective criteria).
In hindsight, 5 justices were clearly coming after substantive due process either way so it didn’t really matter. It may matter for using other federal powers to protect abortion and IMO the democrats should still try this.
Depending on the rules of the relevant legislative body, when filing a bill you may be expected to present a statement of constitutional authority but in practice that turns into a pro forma step where you just appeal to whatever clause sort of looks like it may fit, and you are not actually forced to defend it at that stage.
Okay, reading this and reevaluating thought point #1.
This feels like a piece of disinformation from the Right to once again trick Democrats into eating their own. It’s not the GOPs fault, it’s actually Dems. Just more bothsidesism.
The important part of your point, as I see it, is “This feels like a piece of disinformation from the Right”. The first time around, I assumed that by “This” you meant the protesters you linked to. Now I think you mean a general narrative that Democrats passed on an opportunity to entrench abortion rights in positive federal law.
Protester 1: [The Democratic National Party] have had multiple opportunities to codify Roe into law over the past 20, 30, 40, 50 years, and they haven’t done it.
It’s certainly possible some sort of intentional disinformation is behind this but I think it’s organic enough. We can look at the interview you linked to (or my transcript of it). I believe just based on the interview, we can identify a potential misunderstanding about our government that would lead a reasonable person to the above conclusion.
Reporter: Is this the number one issue for voting?
Protester 1: For me, yes. But for the riseup4abortionrights.org, it’s legal abortion on demand nationwide, we don’t really care about how they get that done. We don’t care about which institution gets it done. We know [it] won’t be the Supreme Court. But somebody needs to do it whether it’s through an executive order or due to the House of Representatives’ action.
It is not a stretch to assume that she thinks a Presidential executive order, or an action by the House of Representatives alone, could provide federal protection for women seeking abortions. This is, to my knowledge, a false premise. But imagine for a second that you share this misconception. It follows organically that every Democratic President, and every Democratic-controlled House of Representatives, has passed on a chance to “codify” Roe. So by Hanlon’s Razor, we can assume the narrative is organic.
Now, you can kick the can down the road a bit and ask why this woman seems to think the President/House can enact significant domestic policy. But I think if you go down that road, you will run into bona fide bothsidesism, primarily by candidates running against an incumbent at all levels of government.
I disagree with you there on the basis of the Tenth Amendment; my application of that here is basically, federal laws without a constitutional foundation are invalid.
…as has been pointed out: this isn’t disinformation. People have every right to want to hold the Democrat leadership to account. “Demanding better” from leadership isn’t “bothsidesism.” Its just demanding better.
And yet: look at where you are now.
Abortion law may have been “flimsy.” But the Supreme Court has always been a partisan, unelected body with almost zero accountability, and leaving it in their hands has proven to be even more flimsy.
America is already at the worst case scenario. Perhaps if the Democrats had pushed for legislation earlier, it may have accelerated the process.
Or maybe it would have lead to a chain of events that lead to McConnell not being able to get the balance of the courts. Maybe Trump didn’t win in 2016. Maybe everything turns out different.
This is entirely a “butterfly flapping its wings” scenario. Things may have turned out worse. But things may have turned out better.
Sometimes when you try to play 4-D chess you end up losing all the pieces. All we know is what actually happened. The Democrats didn’t try to codify the right to abortion in law. And this is what we ended up with.
So where are we now?
The Democrats have to win big at the mid-terms and if they win then they have to codify the right to an abortion because they have no other option.
Which will still mean that the “law will still be flimsy.” It will still mean when power shifts in Congress they will simply change it back. It would still keep it in the political discussion every cycle, making it constantly imperiled. It would still create an opportunity for the opposition to challenge the new law in front of the Supreme Court which would have had uncertain results.
Did you expect it to be easy?
They’ve been fighting for this for decades. The game plan has always been elect a president who will appoint the judges who will over-turn Roe vs Wade. And they have done it.
And the next step will be a federal ban on abortion.
Stop worrying about “politics.” Stop worrying about what a couple of random people said during a random interview that happened to have gone viral on TikTok. They are coming for trans people. They are coming for gay marriage. They are coming for anything remotely “woke.” They want to remake America in their own image, and they don’t give a damn about “politics.”
Instead: just worry about doing what’s right. The world if fundamentally different to what it was even 10 years ago. Disinformation has been weaponised to the point where everything is inherently chaotic. You can’t “focus-test” your way out of this. You need leadership. You need actionable plans. You need to stop worrying about what the GOP are going to do because we all know that they will turn it into a “massive political spectacle” regardless. So just do what needs to be done.
Fair enough, “disinformation” was a lazy choice of word on my part. My suspicion is that GOP political operatives are amplifying this bad argument to deflect blame and Democrats are falling for it hook, line and sinker.
I disagree. This iteration of SCOTUS has found a new low, that’s for sure, but the court doesn’t have a long track record of making regressive changes to overturn popular precedents, certainly not in such a blatantly partisan way. I’ll need a lot more supporting data before I accept the argument that trusting a SCOTUS ruling which stood for 50 years was predictably fools gold.
No shit.
That’s kind of the point, no? Letting MSNBC run a bunch of segments with random talking heads and reactionaries trashing the Dems for not waving a magic wand to prevent this is going to make it much harder to avoid that dystopia coming to pass.
The Dems kept Roe in place for half a century and it took an unprecedented bit of political fuckery and a complicit court also taking unprecedented action to undo it. Yet I’m wrong for wanting to keep the opposition’s focus on what actually matters? You’re in favor of raking the only people standing in the way of a horror show over the coals for something this ill founded?
News to me. Since we’re talking about the Federal Government here I don’t think there’s any question about the relevant legislative body. I’ve absorbed a little bit over the years about how a bill becomes a law and I don’t know that “defending it” ever actually comes into play. Certainly the dog and pony show on CSPAN ain’t any actual legal analysis of the Constitutional foundation of any dumb law.
Are you telling me that this silliness was somehow based on a Constitutional foundation? I’m certainly open to being educated here if this was somehow omitted from Schoolhouse Rocks.
The congress usually gives an explanation for what constitutional Article I authority it is relying on to legislate. For example, the Partial Birth Abortion Ban (an example of a Federally passed abortion law, specifically mentions interstate commerce.)
The federal government is supposed to be limited to enumerated powers (i.e. powers explicitly stated in the constitution). If it isn’t stated the assumption is that it’s a state power.
In reality, there are a few enumerated powers that are extremely vague and courts over the years have comparatively expansive or narrow readings of the powers. They also sometimes just don’t choose to rule on a power and a federal power in practice is de-facto constitutional until ruled otherwise.
Unfortunately, a federal right abortion is obviously a case where the courts wouldn’t just punt. It seems like a requirement to allow abortion products to be sold across state lines would be relatively unimpeachable even for this SCOTUS.
What you’re saying makes sense when you think about the whole Federal vs State thing, but we’ve seen some shit get passed that really leans into that whole open to interpretation point. Since any old law can get passed if enough Congress critters vote for it one could argue that in practice there’s no such requirement…but it could be overturned once challenged. AFAIK the court doesn’t actually weigh in on bills before they become laws.
I’m probably being pedantic on the point (ironic I know after my earlier complaint) but it seems accurate to say that laws don’t need to be based on any Constitutional foundation to be passed into law, but they certainly do if they have any chance of standing.
Anyone who claims to follow politics must know that Congress has wrestled with bills both legalizing AND banning abortion since Roe was decided in 1973. Neither side has been able to muster enough votes to do more than nibble around the edges. Even the Hyde Amendment in 1976 didn’t actually ban abortions, it only restricted federal funding for them.
Here’s a recap (published in February) that does a pretty good job of what’s happened at the federal level since Roe was decided. It seems clear that if either pro-life or pro-choice advocates want a bright line law on abortion, they had better either get a veto proof majority in both houses of Congress, or convince 37 state legislatures to pass a constitutional amendment.
…the track record doesn’t matter. It’s a partisan body. Its been relatively balanced in the past, but that has been more about luck than design. And that balance is broken now.
And because that balance is broken, unless they expand the courts (and even that could be done by “the other side” as well) , it will remain unbalanced for a generation.
The Supreme Court has always been a ridiculous institution. Lifetime appointments. Barely any oversight. Partisan appointments. Taking over the Supreme Court was always the goal. I mean: how did you not see this coming? This is what they wanted. They’ve been openly talking about this for over 20 years.
The Dems are getting (rightly) trashed because they have no plan.
And the dystopia isn’t “coming to pass.”
You are already living in the dystopia.
America has more people incarcerated per capita than anywhere else in the world. The police get more funding than many countries small armies and they just got billions of more dollars in funding this year. Healthcare is rationed by the insurance companies and otherwise unaffordable.
This isn’t the straw that broke the camels back. It was broken a long time ago.