# Federal Ban on Abortion **URL:** \ **Category:** Great Debates\ **Created:** [April 5, 2022, 10:13pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352 "2022-04-05T22:13:51Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 7, 2022, 9:28pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/21 "2022-04-07T21:28:34Z")
> [@doreen](#): > > 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? First, it would be a fairly unusual circumstance where an unborn child’s right of inheritance would come into question so the state law rulings are rather sparse. Plus, the laws are applied inconsistently. For example in my state, a woman using heroin in the 37th week of pregnancy which directly caused the child to be born alive and subsequently died was NOT held to be child abuse causing the death of that child. State v. Louk, 786 S.E.2d 219 (W.Va. 2016). [Google Scholar](https://scholar.google.com/scholar_case?case=7720568450592269144&q=state+v.+louk&hl=en&as_sdt=4,49) Us (at the time) practitioners in child abuse and neglect cases seized on this and said that the State DHHR had no jurisdiction to file abuse and neglect petitions against mothers who gave birth to children with drugs in their systems. That objection (although I won on it in lower courts) was eventually held to not be a viable argument. In re ACLM, 801 S.E.2d 260 (W.Va. 2017). [Google Scholar](https://scholar.google.com/scholar_case?case=13147533915128530364&q=state+v.+louk&hl=en&as_sdt=4,49) The dissent in that case pretty convincingly destroyed the majority’s argument. So, basically, yeah, they are not taking these laws seriously and are only applying them as a way to justify anti-abortion laws. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [April 7, 2022, 9:39pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/22 "2022-04-07T21:39:36Z")
> [@UltraVires](#): > > 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. George Washington thought it was. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 7, 2022, 9:40pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/23 "2022-04-07T21:40:28Z")
As a general ordering a thing for his troops during a revolution. That is night and day from ordinary civilian life. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [April 7, 2022, 9:54pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/24 "2022-04-07T21:54:49Z")
Did West Virginia have a fetal personhood statute in 2016? Because that’s what my question is about , whether there has already been a dispute regarding an actual fetal personhood law. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [April 7, 2022, 10:06pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/25 "2022-04-07T22:06:45Z")
Hahaha! That’s an excellent sidestep. The Supreme Court routinely broadens the question at hand. Anyway, thanks! ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 7, 2022, 10:10pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/26 "2022-04-07T22:10:47Z")
Broaden it to take in an argument that no party advanced? No examples readily come to mind although I have no doubt it has happened. I use that concurrence as an example when teaching younger attorneys not to give up on an argument. Although the anti-abortion people would not likely personally support a strict commerce clause jurisprudence, they may very well have gotten a Thomas vote on that issue (and swung it 5-4 the other way; wouldn’t have gotten a Scalia vote). So don’t leave that club in the bag. Advocate for your client and don’t personalize it. That was a solid argument against the Federal Partial Birth Abortion Ban that was not raised simply because the lawyers couldn’t personally stomach it. Work for the client and not yourself. ---
**Author:** ![Projammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/projammer/32/559_2.png) [@Projammer](https://boards.straightdope.com/u/Projammer)\ **Post date:** [April 7, 2022, 10:15pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/27 "2022-04-07T22:15:24Z")
> [@puzzlegal](#): > > Murder is defined at the state level, not the federal level, so that would be a stretch. Wasn’t [McVeigh](https://en.wikipedia.org/wiki/Timothy_McVeigh) federally executed for the deaths of 168 people, including 19 children in his bombing of a Federal Building? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 7, 2022, 10:16pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/28 "2022-04-07T22:16:22Z")
Yes, but it wasn’t a general murder statute. It was the murder of people on federal property. ETA: And IIRC, he was only charged with the murder of federal employees, not the deaths of others in the building. ---
**Author:** ![Projammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/projammer/32/559_2.png) [@Projammer](https://boards.straightdope.com/u/Projammer)\ **Post date:** [April 7, 2022, 10:20pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/29 "2022-04-07T22:20:47Z")
How is that not a to-ma-to/to-mah-to distinction? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 7, 2022, 10:23pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/30 "2022-04-07T22:23:27Z")
No, Article 1, Section 8, Clause 17 > To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and **other needful Buildings** ; emphasis added. The feds have a clear power to regulate what goes on in a federal building. A general murder statute at the Dollar General? Maybe it could be a commerce clause thing, but there is an explicit power here for the law that McVeigh was convicted of violating which doesn’t need to resort to interpretation. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 7, 2022, 10:58pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/31 "2022-04-07T22:58:27Z")
In fact, as I review this, I’m not sure how the State of Oklahoma had authority to prosecute McVeigh or Nichols for the other murders as the clause clearly states that Congress has “exclusive” jurisdiction over this “needful building.” I haven’t searched the cases, but surely the defense could have said that the State of Oklahoma had no power to punish _anything_ that goes on in a federal building from smoking to murder. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 8, 2022, 3:57am UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/32 "2022-04-08T03:57:42Z")
I don’t think it was the building that triggered the federal statute. The feds prosecuted him for killing the federal employees who died on the job. That didn’t include the children. Oklahoma had jurisdiction over all the killings, under its general Police power. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 8, 2022, 4:03am UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/33 "2022-04-08T04:03:01Z")
According to Wikipedia, McVeigh was convicted of eight federal murder counts ( as well as use of a WMD and conspiracy charges). > **[Timothy McVeigh](https://en.m.wikipedia.org/wiki/Timothy_McVeigh)** > > Pages for logged out editors learn more > > Timothy James McVeigh (April 23, 1968 – June 11, 2001) was an American domestic terrorist responsible for the 1995 Oklahoma City bombing that killed 168 people, 19 of whom were children, injured more than 680 others, and destroyed one-third of the Alfred P. Murrah Federal Building. The bombing was the deadliest act of terrorism in the United States prior to the September 11 attacks. It remains the deadliest act of domestic terrorism in U.S. histor... Nichols got the same WMD charges, and 8 federal manslaughter charges, plus 161 state murder convictions. > **[Terry Nichols](https://en.m.wikipedia.org/wiki/Terry_Nichols)** > > Pages for logged out editors learn more > > > Terry Lynn Nichols (born April 1, 1955) is an American domestic terrorist who was convicted of being an accomplice in the Oklahoma City bombing. Prior to his incarceration, he held a variety of short-term jobs, working as a farmer, grain elevator manager, real estate salesman, and ranch hand. He met his future co-conspirator, Timothy McVeigh, during a brief stint in the U.S. Army, which ended in 1989 when he requested a hardship discharge after ... ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [April 8, 2022, 6:59am UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/34 "2022-04-08T06:59:37Z")
> [@UltraVires](#): > > Nobody (who means anything) is trying to outlaw abortion nationwide. Do you know just how many _nobodies_ in Congress support nationwide fetal personhood? In the Senate, > Mr. Paul (for himself, Mr. Daines, Mr. Thune, Mr. Rounds, Mrs. Blackburn, Mr. Marshall, Mr. Risch, Mr. Inhofe, Mr. Wicker, Mr. Braun, Mr. Crapo, Mr. Cramer, Mr. Kennedy, and Mr. Scott of South Carolina) introduced the following bill; which was read twice and referred to the Committee on the Judiciary In the House of Representatives, > Mr. Mooney (for himself, Mr. Burchett, Mr. Budd, Mr. Weber of Texas, Mr. Duncan, Mr. Gallagher, Mr. Waltz, Mr. Jordan, Mr. Aderholt, Mr. McKinley, Mr. Guest, Mr. Cloud, Mr. LaMalfa, Mrs. Miller of West Virginia, Mr. Reschenthaler, Mr. Gibbs, Mr. Joyce of Pennsylvania, Mr. Burgess, Mr. Brooks, Mr. Lamborn, Mr. Norman, Mr. Banks, Mr. Huizenga, Mr. Allen, Mr. Kelly of Mississippi, Mr. Sessions, Mr. Carl, Mr. Mann, Mr. Davidson, Mr. Gohmert, Mr. Johnson of South Dakota, Mr. Feenstra, Mr. Grothman, Mr. Hollingsworth, Mr. Williams of Texas, Mrs. Lesko, Mr. Luetkemeyer, Mr. Biggs, Mr. Bucshon, Mr. Steube, Mr. Rose, Mr. Graves of Missouri, Mr. Higgins of Louisiana, Mrs. Greene of Georgia, Mr. Rogers of Alabama, Mr. LaHood, Mr. Long, Mr. Wittman, Mr. Murphy of North Carolina, Mr. Good of Virginia, Mr. Bacon, Mr. Roy, Mr. Moore of Alabama, Mrs. Rodgers of Washington, Mr. Timmons, Mr. Balderson, Mr. Babin, Mr. Smith of Missouri, Mr. Harris, Mr. Hice of Georgia, Mr. Kustoff, Mr. Rosendale, Mr. Hagedorn, Mr. Wenstrup, Mr. Bishop of North Carolina, Mr. Fulcher, Ms. Herrell, Mr. Latta, Mr. Massie, Mr. Loudermilk, Mrs. Miller of Illinois, Ms. Cheney, Mr. Rogers of Kentucky, Mrs. Hartzler, Mr. Newhouse, Mr. Guthrie, Mr. Smith of Nebraska, Mr. Johnson of Louisiana, Mr. Dunn, Mr. Armstrong, Mrs. Boebert, Mr. Womack, Mr. Emmer, Mr. Fortenberry, Mr. Perry, Mr. Baird, Mr. Keller, Mr. Palazzo, Mr. Gooden of Texas, Mr. Chabot, Mr. Gosar, and Mr. Johnson of Ohio) introduced the following bill; which was referred to the Committee on the Judiciary And what is this nationwide fetal personhood bill? I do mean _the_ nationwide fetal personhood bill. It’s been around for decades. > **A BILL** > > To implement equal protection under the 14th Amendment to the Constitution of the United States for the right to life of each born and preborn human person. > > _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ > > SECTION 1. Short title. > > This Act may be cited as the “Life at Conception Act of 2021”. > > SEC. 2. Right to life. > > To implement equal protection for the right to life of each born and preborn human person, and pursuant to the duty and authority of Congress, including Congress’ power under section 8 of article I of the Constitution of the United States to make necessary and proper laws, and Congress’ power under section 5 of the 14th Amendment to the Constitution, the Congress hereby declares that the right to life guaranteed by the Constitution is vested in each human being. Nothing in this Act shall be construed to require the prosecution of any woman for the death of her unborn child, a prohibition on in vitro fertilization, or a prohibition on use of birth control or another means of preventing fertilization. > > SEC. 3. Definitions. > > In this Act: > > (1) HUMAN PERSON; HUMAN BEING.—The terms “human person” and “human being” include each member of the species homo sapiens at all stages of life, including the moment of fertilization or cloning, or other moment at which an individual member of the human species comes into being. > > (2) STATE.—For purposes of applying the 14th Amendment to the Constitution of the United States and other applicable provisions of the Constitution to carry out section 2, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and each other territory or possession of the United States. ~Max ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 8, 2022, 9:15am UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/35 "2022-04-08T09:15:03Z")
> [@Max\_S](#): > > Nothing in this Act shall be construed to require the prosecution of any woman for the death of her unborn child I snipped this part to show that they might call it a fetal personhood bill but they don’t really mean it. If a woman killed her two year old child anywhere in the country, people would demand that she be prosecuted. But even anti-abortion bills exempt the woman from prosecution. If people really thought that fetuses were full persons, they wouldn’t have these types of exceptions. ETA: It is also easy to sign on to a bill that has no chance of passing to get the endorsement of pro-life groups. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 8, 2022, 12:49pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/36 "2022-04-08T12:49:44Z")
> [@Northern\_Piper](#): > > Oklahoma had jurisdiction over all the killings, under its general Police power. But how does that square with the plain text of the Constitution that the feds have “exclusive” jurisdiction over the laws in those “needful buildings”? ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [April 8, 2022, 1:06pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/37 "2022-04-08T13:06:28Z")
It is also explicitly a part of the Republican Party platform that, “. . .we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.” Sure, party platforms are basically there to appease your crazies and have only a loose relationship to actual governing. But a huge part of what drives Trumpism is Republican base voters sick of being continually promised these red meat positions then being fed excuses when Republicans are in power. If _Roe_ is overturned, the people who provide the passion, money and votes for the pro-life movement aren’t going to just say “mission accomplished” and go home. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 8, 2022, 1:20pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/38 "2022-04-08T13:20:18Z")
> [@UltraVires](#): > > But how does that square with the plain text of the Constitution that the feds have “exclusive” jurisdiction over the laws in those “needful buildings”? According to this article, the state and the feds can agree on the terms of a cession of state land, so that state laws of certain types may continue to apply. I would think that the feds would be less interested in excluding all state laws from an ordinary office building than they would be for a military base, which seems to be the main thrust of that provision, but that’s just a guess on my part. > [@](#): > > Nevertheless, the Supreme Court has held that a state may convey, and the Congress may accept, either exclusive or qualified jurisdiction over property acquired within the geographical limits of a state, for purposes other than those enumerated in clause 17.[6](https://constitution.congress.gov/browse/essay/artI-S8-C17-2/ALDE_00001081/#ALDF_00001831) > … > But when the issue was squarely presented in 1937, the Court ruled that, when the United States purchases property within a state with the consent of the latter, it is valid for the state to convey, and for the United States to accept, concurrent jurisdiction over such land, the state reserving to itself the right to execute process and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States.[20](https://constitution.congress.gov/browse/essay/artI-S8-C17-2/ALDE_00001081/#ALDF_00001845) The holding logically renders the second half of clause 17 superfluous.\ [https://constitution.congress.gov/browse/essay/artI-S8-C17-2/ALDE\_00001081/](https://constitution.congress.gov/browse/essay/artI-S8-C17-2/ALDE_00001081/) ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [April 8, 2022, 2:14pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/39 "2022-04-08T14:14:26Z")
> [@UltraVires](#): > > 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 I don’t believe this. There are, at least, two “conservative” views on the application of the 14th Amendment’s due process provisions to abortion. The first would suggest that the federal constitution is silent on abortion (and a number of other things) and that these issues are properly regulated (if at all) by the normal political processes. The other would argue that the 14th Amendment should affirmatively protect the “life” of “unborn persons” from deprivation without due process. The latter is hardly a fringe view. It relies on an approach to the constitutional text that is more commonly embraced by “liberal” but the idea that this is not “conservative” is just an example of the problem of trying to lump numerous ideologies into one of two categories. And, of course, saying that the constitution is silent on abortion and it should be left to the political branches of the government to regulate says very little about the scope of permissible federal regulation. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 8, 2022, 3:46pm UTC](https://boards.straightdope.com/t/federal-ban-on-abortion/962352/40 "2022-04-08T15:46:00Z")
> [@flurb](#): > > It is also explicitly a part of the Republican Party platform that, “. . .we assert the sanctity of human life and affirm that the unborn child has a fundamental > right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.” Right, and will this get 2/3ds of each house of Congress and 3/4ths of the states in any universe that we might conceivably live in? Of course not. But that brings in the voters and money. > [@Northern\_Piper](#): > > According to this article, the state and the feds can agree on the terms of a cession of state land, so that state laws of certain types may continue to apply. Excellent. This board always fights ignorance, even though if I was Judge Ultravires that seems completely contrary to the plain text, but okay. 🙂 > [@Falchion](#): > > The other would argue that the 14th Amendment should affirmatively protect the “life” of “unborn persons” from deprivation without due process. The latter is hardly a fringe view. It relies on an approach to the constitutional text that is more commonly embraced by “liberal” but the idea that this is not “conservative” is just an example of the problem of trying to lump numerous ideologies into one of two categories. And again, yes, I hear that from crazies in the local party, but that simply cannot be something that any serious jurist would read from the 14th Amendment. The 14th is simply silent on the definition of a “person” (except to say that if they are born or naturalized in the United States that they are citizens of the United States and their home state). So I don’t see how anyone, conservative or liberal, can say that “person” must mean a fetus/unborn child. The amendment is simply silent on that, and it is contrary to the common law and common understanding. If you and your wife have two children and she is pregnant and someone asks “How many children do you have?” would any English speaking person say “three”? Most people would probably say, “Two, with another on the way” thereby making a distinction between born and unborn and acknowledging that an unborn child is not yet a “person.” [Previous page](https://boards.straightdope.com/t/federal-ban-on-abortion/962352.md?page=1) [Next page](https://boards.straightdope.com/t/federal-ban-on-abortion/962352.md?page=3)