Federal Ban on Abortion

Given the nature of the present Supreme Court regardless of the introduction of KBJ, could the next Republican president issue a federal ban on abortion by executive order successfully?

How would that work? Healthcare is regulated at the state level.

Executive orders are legally required to be based on powers the Executive branch is explicitly granted by the Constitution or has delegated to it by the Legislature, so there’s no legal basis at all for that kind of order.

Now, could the Supreme Court just refuse to acknowledge that and ignore all legal attempts to challenge it? Sure, I guess. But at that point you’re looking at a Constitutional Crisis and basically a dictatorship with a rubber-stamp court. I don’t see any indication that the court would do such a thing.

ISTR that the assumption is that the Court might somehow and sometime in future rule on “fetal personhood”, the notion that the preborn fetus is entitled to all the protections under the law that a born person is. Thus, a murder statute must be applied to anyone who kills someone who is not born yet, or that murder statute would be found unconstitutional.

This would be action at the federal level, but not from the Executive Branch specifically.

Murder is defined at the state level, not the federal level, so that would be a stretch.

True, but state criminal law has to comply with the US Constitution, including equal protection.

If a fetus is found to be a human being for constitutional purposes, then failing to protect the fetus by not including them in state murder laws might be found to be a breach of equal protection, just like if the murder laws only protected white people.

There are federal murder statutes, though. These apply to killings of federal employees, and of course to killings on federal property.

IANAL but I don’t see why a federal ban on abortion wouldn’t succeed as long as SCOTUS backs it up (which everything ultimately comes down to.)

Republicans pass federal ban, Republican president signs ban into law

Pro-choicers: Hey, you can’t do that, Roe says this ban isn’t allowed

Pro-life SCOTUS: Upholds federal ban and overturns Roe: There.


The federal government could make abortions illegal (murder) if either of the parents worked for the federal government? (I assume that also includes everyone in the military.)

Well, the employees aren’t federal property so Congress could, I suppose, make it murder if committed by federal employees or by service members.

Doing it by executive order would be a major stretch, but there are already federal laws restricting abortion (the “Partial-Birth Abortion Ban Act”). Most medical services are likely to be considered interstate commerce under the current broad definition.

I agree, but as we have seen with the gridlock in Congress caused by the 60 vote rule in the Senate, presidents have gotten very creative with this, and I think a lawyer with a laptop and a legal pad could draft an executive order in a day that would at least plausibly involve an existing executive authority as there are about 20 bajillion of them. This is why I have agreed with the Supreme Court in striking down the OSHA vaccine mandate, for example. Nobody would have thought that was such a power that could be enacted by executive order.

I know the left has feared this for years, but I don’t know any serious jurist that subscribes to this idea. The Fourteenth Amendment doesn’t define a “person” and it would be jiggery-pokery of the highest order to say that an unborn child/fetus is a person as there is no support for that in the common law, the text of the Constitution, or the history and traditions of this nation. I don’t think you would even get Clarence Thomas to sign on to that.

There are a million problems with legal personhood for a fetus, even at a state level, let alone a federal one. The first thing that comes to mind is that abortion could not be legal even to save the life of the mother as because if the fetus is a person, the equal protection clause would forbid the state choosing the value of one life over another.

Inheritance laws are another. A man is a widower with four children and dies leaving his property to his descendants “by representation” as is very common. One of the children died last month, but we find out that his wife is pregnant with child. What portion does that unborn child get? What if the wife miscarries? Does the unborn child inherit the share and then as it has “died” the share goes to its mother, who is not related to the first man? Does a tubal pregnancy count? What about frozen embryo?

Fetal personhood is something that right wing conservatives have done, IMHO, very frivolously only to counteract the language in Roe that the constitution does not define a fetus as a person. They think, “Oh, but if our state does, then our abortion laws can hold up” without thinking of the consequences.

I don’t see any way that there will ever be one, let alone five votes on the Supreme Court for such a revolutionary idea. They can overturn Roe without fetal personhood.

Overturning Roe doesn’t ban it nationwide. Fetal personhood is a way to do that.

You say that there are a million problems with legal personhood for fetuses, and yet multiple states already have those laws on the books.

The other thing that seems like could definitely be done at the federal level is making it illegal to go to another state to obtain an abortion. So, Roe is overturned, the whole middle and south of the country immediately bans abortion, except maybe Illinois and Minnesota, and then the feds make it illegal to go to neighboring states to obtain one. For a poor person living in Alabama, it would be quite the track to NY or Maryland or something.

So, if the middle and south of the country bans abortion, I assume they’re going to expand the social safety net so that these babies can grow up and make something out of their lives, right? Instead of going to bed not knowing why they’re hungry?

No? They don’t give a damn about you once you’re born? That’s what I thought.

No, they will just trot out the “Don’t have kids if you can’t afford them” trope, and wash their hands of the whole thing.

Even Antonin Scalia would not have gone that far.

And they are struggling with these issues and the bulk of the state court rulings boil down to “Meh, this was only supposed to be an abortion thing.”

Under the current interpretation of the commerce clause such a law could certainly be passed by Congress, but it would be improper for the Court to decree such a thing. And there is simply not enough support, even among Republicans, to pass such a law. The whole thing is a left wing red herring. Nobody (who means anything) is trying to outlaw abortion nationwide. The only thing our side is saying is that the Constitution doesn’t protect it and that a state may prohibit it within its borders. A state cannot put you on house arrest and prevent you from going to another state where it is legal.

I’m not following this. If the law made it illegal to go to a neighboring state, why would it still be legal to go to NY or MD?

Indeed. With freedom comes responsibility. I take care of my child and I’m sure you do as well. This society isn’t a backwoods religious cult where you have the right to dump your kids off on your neighbors because you can’t afford them. We take care of the less fortunate in our society because of our generosity but I find the idea that you should be able to kill your children because you cannot take care of them and find the government stipend inadequate to be a rather silly argument.

You are correct, of course, on this point. I lost my train of thought here.

I think you’re completely wrong about the level of anti-abortion zeal in today’s Republican party, but trading theoreticals in GD is not worth doing.

Legal question: how does the federal partial birth abortion ban stand up to scrutiny? (this isn’t a challenge or counterargument, it’s genuine curiosity)

Thomas and Scalia mentioned it in a concurrence:

I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson , 544 U. S. 709, 727, n. 2 (2005) (Thomas, J., concurring).

Which is why the anti-abortionists want to take away freedom, I guess.

Nah, I chose not to have any. I don’t think I’d like 'em too much if I did.

Good thing that no one makes that argument.

I’m not sure what you are saying here - are you saying there have already been disputes involving fetal personhood laws ( say, whether that unborn child inherits) and there have been rulings that actually said that those laws only apply to abortion and a fetus is not a person for any other purpose?