# Federal Law Banning Abortion: Likely? **URL:** \ **Category:** Great Debates\ **Created:** [July 20, 2005, 9:09pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351 "2005-07-20T21:09:52Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [July 20, 2005, 9:09pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/1 "2005-07-20T21:09:52Z")
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. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 20, 2005, 9:27pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/2 "2005-07-20T21:27:21Z")
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. ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [July 20, 2005, 9:41pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/3 "2005-07-20T21:41:56Z")
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 ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 20, 2005, 9:43pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/4 "2005-07-20T21:43:55Z")
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. ---
**Author:** ![Debaser](https://avatars.discourse-cdn.com/v4/letter/d/3da27b/32.png) [@Debaser](https://boards.straightdope.com/u/Debaser)\ **Post date:** [July 20, 2005, 9:44pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/5 "2005-07-20T21:44:08Z")
No way. Never. If the republicans even mentioned attempting a federal abortion ban they would be toast in the next election. They know this. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 20, 2005, 10:00pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/6 "2005-07-20T22:00:41Z")
> [@Gadarene](#): > > 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. What’s left of \*Lopez \*and \*Morrison \* after _Raich_? [http://boards.straightdope.com/sdmb/showthread.php?t=320121](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](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_). ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [July 20, 2005, 10:00pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/7 "2005-07-20T22:00:42Z")
> [@Gadarene](#): > > 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. 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. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 20, 2005, 10:23pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/8 "2005-07-20T22:23:05Z")
> [@](#): > > What’s left of Lopez and Morrison after Raich? 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 20, 2005, 10:38pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/9 "2005-07-20T22:38:33Z")
> [@zev\_steinhardt](#): > > 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 I found this: [http://www.cnn.com/2003/ALLPOLITICS/11/05/abortion.ap/](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: [Harvard Journal on Legislation](http://www.law.harvard.edu/students/orgs/jol/vol41_2/gordon.pdf) (pdf) ---
**Author:** ![Spectre\_of\_Pithecanthropus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spectre_of_pithecanthropus/32/12343_2.png) [@Spectre\_of\_Pithecanthropus](https://boards.straightdope.com/u/Spectre_of_Pithecanthropus)\ **Post date:** [July 20, 2005, 10:42pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/10 "2005-07-20T22:42:33Z")
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! ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 20, 2005, 10:52pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/11 "2005-07-20T22:52:04Z")
> [@Gadarene](#): > > 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. We’re back to that again, are we? How did Raich involve any economic transactions? > [@](#): > > Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U. S. C. §801 et seq., to the extent **it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use.**. (Emphasis added). > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/545/1.html)** > > FindLaw's searchable database of United States Supreme Court decisions since 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. 😃 ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [July 20, 2005, 10:52pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/12 "2005-07-20T22:52:41Z")
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.](http://www.nrlc.org/news/2002/NRL07/house.htm) 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. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 20, 2005, 11:04pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/13 "2005-07-20T23:04:12Z")
> [@](#): > > BTW, on another note, I read part of Cushman’s book, Rethinking the New Deal Court. Thanks for recommending it. No problem! 🙂 When you’re done with that, I recommend [Desperately Seeking Certainty](http://www.amazon.com/exec/obidos/ASIN/0226238091/qid=1121900638/sr=2-2/ref=pd_bbs_b_2_2/103-2701684-9635042) by Daniel Farber and Suzanna Sherry. Really wonderful book. And I have no quick response for you on _Raich_; lemme think about it. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [July 20, 2005, 11:06pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/14 "2005-07-20T23:06:57Z")
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. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 20, 2005, 11:17pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/15 "2005-07-20T23:17:11Z")
> [@](#): > > 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. What if evangelical conservatives were to read a right to life into the Fourteenth Amendment and apply it to fetuses? ---
**Author:** ![jimmmy](https://avatars.discourse-cdn.com/v4/letter/j/73ab20/32.png) [@jimmmy](https://boards.straightdope.com/u/jimmmy)\ **Post date:** [July 20, 2005, 11:19pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/16 "2005-07-20T23:19:04Z")
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 ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [July 20, 2005, 11:25pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/17 "2005-07-20T23:25:00Z")
> [@](#): > > What if **evangelical conservatives** were to read a right to life into the Fourteenth Amendment and apply it to fetuses? 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. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 21, 2005, 12:25am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/18 "2005-07-21T00:25:17Z")
> [@](#): > > No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 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. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 21, 2005, 12:28am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/19 "2005-07-21T00:28:16Z")
> [@Debaser](#): > > No way. Never. > > If the republicans even mentioned attempting a federal abortion ban they would be toast in the next election. They know this. 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 21, 2005, 12:38am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/20 "2005-07-21T00:38:20Z")
> [@Gadarene](#): > > No problem! 🙂 When you’re done with that, I recommend [Desperately Seeking Certainty](http://www.amazon.com/exec/obidos/ASIN/0226238091/qid=1121900638/sr=2-2/ref=pd_bbs_b_2_2/103-2701684-9635042) by Daniel Farber and Suzanna Sherry. Really wonderful book. > > And I have no quick response for you on _Raich_; lemme think about it. 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. [Next page](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351.md?page=2)