Federal Law Banning Abortion: Likely?

Great Debates
#1

I’m taking it as a given that Roe v Wade is toast, and it’s just a matter of time. If you consider that point highly debatable, this may not be your thread.

If you are willing to take the above premise as given (even for the sake of argument), it’s clear one possible step for the right wing is to try to get a Federal ban on abortion voted into law. Of course the left wing will fight enactment of such a law with uncharacteristic vigor.

Given how partisan Washington politics have become, it seems to me not out of the realm of possibility that the Republicans will mobilize for such a law, given how beholden they are to the religious right as needed tiebreakers. Winning would, however, deprive them of a very useful wedge issue that has been a trump card in so many political battles in the past that finally cashing in the chips would leave them searching for another issue so divisive, yet so unlikely to change as to be goose that lays the golden egg again and again. Of course, what the right cannot have in this instance, neither can the left. It’s a difficult political calculus problem, and I’m really quite stumped on this one.

Any guess? It’s predicting the future, I know (always difficult, so sayeth Bohr), but I’m curious about your thoughts.

#2

I’m already on record as saying the GOP will go for a Federal anti-abortion law. They ‘Christian’ Right wants that win, and most of the House GOP is not just elected by the fundies; they are the fundies.

They will always be able to find new liberal ‘abuses’ to get outraged about, even after they control everything of any significance. There will always be new Ward Churchills, and if they run out of real ones, they’ll invent them.

#3

There may be a ban on late-term abortions (heck, it used to pass every year anyway, only to be vetoed by President Clinton).

But I don’t think that there will ever be a nation-wide flat-out ban on abortion. Some states may choose to go this route, but I don’t think it will pass nationwide.

Zev Steinhardt

#4

I don’t think it can pass nationwide, constitutionally, without an evisceration of Lopez and Morrison. One step forward, three steps back for the conservatives.

#5

No way. Never.

If the republicans even mentioned attempting a federal abortion ban they would be toast in the next election. They know this.

#6

What’s left of *Lopez *and *Morrison * after Raich?

http://boards.straightdope.com/sdmb/showthread.php?t=320121 (Wherein **Gfactor ** suggests that *Raich * is a return to the *Wickard *, standard).

http://boards.straightdope.com/sdmb/showthread.php?t=283721 (Wherein **Gfactor **questions whether such a statute would be within the commerce power in view of *Lopez *and Morrison before Raich).

#7

Y’know, I’ve read about this, and I never quite grokked why the Interstate Commerce Clause was made so terribly relevant to the PABA, such that it could be argued against on those terms. Need Congress write a law with equally inane and untenable premises to enact some ban on abortion, be it late-term, or the whole ball-o-wax?

And, props to above, it hadn’t occurred to me that one way to keep the goose laying those eggs is to possibly get a partial-birth abortion ban enacted, whilst leaving early-term abortions unchallenged (for now). “Abortion”, then, is still legal, while much has been done to satisfy Christian conservatives.

#8

A fair bit. Unlike Lopez and Morrison, Raich directly involved economic transactions. The latter can easily be distinguished, leaving the former two almost entirely intact.

#9

I found this:

http://www.cnn.com/2003/ALLPOLITICS/11/05/abortion.ap/ (article titled Bush signs ban on late-term abortion)

and here is more on the topic:

http://www.law.harvard.edu/students/orgs/jol/vol41_2/gordon.pdf (pdf)

#10

It better not be, what with the conservatives having for years said the Court shouldn’t have interfered, but rather should have left it to the states!

#11

We’re back to that again, are we? How did Raich involve any economic transactions?

(Emphasis added).

Where is the economic transaction there? Is it any different from obtaining an abortion? Or a doctor *agreeing *to perform one and accepting a fee? What if the hospital accepts patients from across state lines? Medical equipment will be purchased from out-of-state vendors. Out-of-state insurers will be billed.

BTW, on another note, I read part of Cushman’s book, Rethinking the New Deal Court. Thanks for recommending it. :smiley:

#12

I simply don’t believe that there are the votes in Congress, now or for the foreseeable future, to do such a thing.

For example, in 2002, the House – that Republican stronghold – nearly voted to allow privately funded abortions to take place in military hospitals overseas. The vote was 202-215. Cite. The same thing actually passed in the Senate, with support of some Republicans.

If the matter of lifting existing restrictions on abortions is such a closely divided issue, I fail to see how a total ban on abortions would ever pass. There are moderates on the abortion issue, even in the Republican party. The Chairman of the Senate Judiciary Committee, for one.

#13

No problem! :slight_smile: When you’re done with that, I recommend Desperately Seeking Certainty by Daniel Farber and Suzanna Sherry. Really wonderful book.

And I have no quick response for you on Raich; lemme think about it.

#14

I don’t see it even a slight possibility. As I see it, R v W’s finding to a right to abortion is not a right granted by the Constitution (I don’t care to debate it, I read it and couldn’t find it) and has to be overturned if we are to follow the Constitution. This does not mean it will be federally banned, and I really don’t suspect that it will, more likely it will fall to the states and there I suspect that some will be more restrictive then others.

As I see it this could be the best thing that could happen to the ‘pro-choice’ camp, as with R vs W they were really living a lie, now they can honestly get some legislation done, and perhaps even a amendment.

#15

What if evangelical conservatives were to read a right to life into the Fourteenth Amendment and apply it to fetuses?

#16

I am sure such a law could not pass because the Republicans don’t have a filibuster proof majority – if that were to change I think it is entirely possible something like this could indeed pass.

The so-called “partial-birth" abortion bill (including language that did not offer exceptions for the life or health of the mother), HR 4965, passed (essentially) this House in 2003. It was kept off the floor by the Democratic leadership in the Senate. I expect the same scenario to play out with an full Abortion law (really almost any Abortion law) unless and until the Presidency changes or the Senate balance changes

#17

What if atheistic liberals were to read a right to life into the Fourteenth Amendment and apply it to fetuses?

Why does it matter who reads such a right?

Also this amendment requires birth as a condition, I really don’t see a issue here.

#18

The “person” in the Equal Protection Clause need not have been born. The first sentence of the Fourteenth Amendment, the one referring to “[a]ll persons born or naturalized in the United States,” is defining citizenship, nothing more.

#19

I truly believe most Republican politicians are stupid enough to do it anyway, especially in the House of Representatives. Some would saw their own leg off if they thought it would advance right wing social conservatism in the short run.

#20

Another angle to consider. If you look at Lopez, Morrison, and *Raich * in series you will see that Rehnquist briefly gained a federalist majority (Rehnquist, O’Connor, Scalia, Kennedy, Thomas) in *Lopez *and Morrison. In Raich, he lost Kennedy and Scalia. O’Connor wrote the dissent, which Rehnquist and Thomas joined.

Now O’Connor is going, and Rehnquist is probably next. So any predictions about Commerce Clause jurisprudence may well hinge on Roberts’ views.