# 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:** 2
**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, 12:51am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/21 "2005-07-21T00:51:41Z")
> [@](#): > > Now O’Connor is going, and Rehnquist is probably next. So any predictions about Commerce Clause jurisprudence may well hinge on Roberts’ views. Lemme put it this way: I’d bet big money that at least one, and probably multiple, cases will be decided over the next few years in which the Court explicitly relies on _Lopez_ and/or _Morris_ in order to reach its result, _Raich_ notwithstanding. ---
**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, 3:51am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/22 "2005-07-21T03:51:01Z")
[http://www.ca8.uscourts.gov/tmp/043379.html](http://www.ca8.uscourts.gov/tmp/043379.html) (July 8, 2005 8th Circuit opinion finding the federal partial birth statute unconstitutional under _Sternberg_, refusing to address whether an the ban was an undue burden because it covered most late-term procedures.) ---
**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, 5:14am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/23 "2005-07-21T05:14:00Z")
> [@Gadarene](#): > > Lemme put it this way: I’d bet big money that at least one, and probably multiple, cases will be decided over the next few years in which the Court explicitly relies on _Lopez_ and/or _Morris_ in order to reach its result, _Raich_ notwithstanding. I agree that’s the probable result. I’m not sure what to think about it. A mixed blessing? ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 21, 2005, 5:33am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/24 "2005-07-21T05:33:14Z")
> [@Gadarene](#): > > Lemme put it this way: I’d bet big money that at least one, and probably multiple, cases will be decided over the next few years in which the Court explicitly relies on _Lopez_ and/or _Morris_ in order to reach its result, _Raich_ notwithstanding. Which Lopez and Morris are you referring to? ---
**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, 5:41am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/25 "2005-07-21T05:41:39Z")
> [@treis](#): > > Which Lopez and Morris are you referring to? [Lopez](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=514&invol=549) [Morrison](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-5) They are discussed throughout the \*Raich \*opinion. \*Lopez \* held that the commerce power did not extend to a federal law prohibiting guns in school zones. \*Morisson \* invalidated a statute that provided a federal civil remedy for the victims of gender-motivated violence on the same grounds. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 21, 2005, 5:47am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/26 "2005-07-21T05:47:21Z")
Ah yes, thank you I remember those from the last time we did this. It would be nice (and I assume a lot of Law Students agree with me) if they had a bit more descriptive case titles. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 21, 2005, 6:27am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/27 "2005-07-21T06:27:45Z")
> [@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. I disagree that _Lopez_ and/or _Morrison_ need to be eviscerated (great word btw) for the Court to find that Abortion falls under the standard of _Wickard_. If woman could somehow abort the fetus just by thinking about it I would agree with you. The only line of reasoning that the Federal Government could use would be that the aborted fetuses would detract from inter-state commerce. This type of reasoning is clearly denied in _Lopez_ and _Morrison_. However, abortions are clearly economic activity that in aggregate can substantially affect inter-state trade, satisfying _Wickard_. Abortions are services that are sold, equipment must be bought to perform them and drugs must be purchased among other things. Couple that with the very likely outcome that some states would ban abortion while others would legalize it and its extremely clear that abortions would affect inter-state commerce. Still, for abortion to be outlawed on a Federal or any level for that matter [Griswold](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=479) in my very humble opinion would also have to be overturned. In that case the Court ruled that the State could not intrude on marital privacy in regards to birth control. I fail to see how that birth control being post-conception would have an impact on that ruling. Afterall, abortion in a general sense does not differ from birth control except on the pre/post-conception aspect. Since there is no legal basis for that point to matter I don’t believe abortion can be banned while it stands. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [July 21, 2005, 6:42am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/28 "2005-07-21T06:42:52Z")
> [@treis](#): > > Still, for abortion to be outlawed on a Federal or any level for that matter [Griswold](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=479) in my very humble opinion would also have to be overturned. In that case the Court ruled that the State could not intrude on marital privacy in regards to birth control. I fail to see how that birth control being post-conception would have an impact on that ruling. Afterall, abortion in a general sense does not differ from birth control except on the pre/post-conception aspect. Since there is no legal basis for that point to matter I don’t believe abortion can be banned while it stands. IANAL, but as I read _Griswold_ it has nothing to do with birth control, it has to do with preventing conception. Since an abortion takes place **after** conception, why would the SCOTUS need to overturn it for a federal anti-abortion law to be allowed? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 21, 2005, 6:50am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/29 "2005-07-21T06:50:15Z")
I agree with Debaser. The last thing any conservative wants is to have to actually vote for a law genuinely banning abortion. For every pro-life vote they gained (and they already have most pro-life votes anyway) they’d lose twenty pro-choice votes. (Nancy Reagan has said she supports a woman’s right to choose. Now imagine the Republicans facing an election where they’ve lost every woman voter to the left of Nancy Reagan.) In fact, if the Supreme Court overturns Roe v Wade, I expect it will be the Democrats putting forth an anti-abortion law just to force Republicans to have to pick sides. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 21, 2005, 7:05am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/30 "2005-07-21T07:05:42Z")
> [@Snowboarder Bo](#): > > IANAL, but as I read _Griswold_ it has nothing to do with birth control, it has to do with preventing conception. Since an abortion takes place **after** conception, why would the SCOTUS need to overturn it for a federal anti-abortion law to be allowed? Yes, but: > [@Griswold](#): > > The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 377 U.S. 288, 307 . Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The [381 U.S. 479, 486] very idea is repulsive to the notions of privacy surrounding the marriage relationship. I fail to see how that statement can apply to those methods of birth control that prevent contraception and those that prevent say implantation of the blastula in the uterus. It is true that the law in this case referred to contraception and correspondingly ruled on contraception but I believe that it applies to what we would consider to be birth control. I don’t see how, legally, the sperm and ovum fusing would affect marital privacy until such time that the State has a compelling interest in the Unborn Child. I do fear that I am providing yet another example of the adage that a little knowledge is a dangerous thing. I don’t know if States can outlaw selling or purchasing contraception in lieu of possesion. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [July 21, 2005, 9:57am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/31 "2005-07-21T09:57:46Z")
> [@](#): > > “[a]ll persons born or naturalized in the United States,” is defining citizenship, nothing more. Well since it says that citizenship required birth, fetuses are not citizens, so this protection is not granted to them: > [@](#): > > No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States However this one could be applies: > [@](#): > > ; 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. Which is what you were saying. It appears that there may be a better argument that abortions should be unconstitutional, as opposed to restricting abortion. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2005, 11:45am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/32 "2005-07-21T11:45:51Z")
> [@kanicbird](#): > > Which is what you were saying. It appears that there may be a better argument that abortions should be unconstitutional, as opposed to restricting abortion. Sure - this is the hypothetical I’ve used for years when giving examples of an activist court ruling where I’d love the end result. Abortion is a scourge; I would love to see it stopped across the entire country. However… the idea that a future Supreme Court would hold up the Fourteenth Amendment and say that “persons” refers to unborn children - while certainly possible now - is as activist and undesirable as Roe v. Wade ever was. ---
**Author:** ![SentientMeat](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@SentientMeat](https://boards.straightdope.com/u/SentientMeat)\ **Post date:** [July 21, 2005, 11:52am UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/33 "2005-07-21T11:52:09Z")
> [@Bricker](#): > > Abortion is a scourge; I would love to see it stopped across the entire country. That would lead to an interesting new cross-border and transatlantic trade route. Short of closing those routes _a la_ “A Handmaid’s Tale”, I assume American Airways wouldn’t require an extra ticket for the bunch of cells arbitrarily labelled “a person”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2005, 12:08pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/34 "2005-07-21T12:08:24Z")
> [@SentientMeat](#): > > That would lead to an interesting new cross-border and transatlantic trade route. Short of closing those routes _a la_ “A Handmaid’s Tale”, I assume American Airways wouldn’t require an extra ticket for the bunch of cells arbitrarily labelled “a person”. Nor do they require an extra ticket now for a three-month old. Your point? ---
**Author:** ![SentientMeat](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@SentientMeat](https://boards.straightdope.com/u/SentientMeat)\ **Post date:** [July 21, 2005, 12:18pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/35 "2005-07-21T12:18:00Z")
> [@Bricker](#): > > Nor do they require an extra ticket now for a three-month old. > > Your point? That Airlines have utterly arbitrary thresholds, as do laws. Calling a blastocyst a “person” is _just as arbitrary_, and considering conception to be the non-person to person transition is as backwards as Amish neuroscience. But feel free to seek to make your country a parody of itself. ---
**Author:** ![Paul\_in\_Qatar](https://avatars.discourse-cdn.com/v4/letter/p/ccd318/32.png) [@Paul\_in\_Qatar](https://boards.straightdope.com/u/Paul_in_Qatar)\ **Post date:** [July 21, 2005, 12:33pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/36 "2005-07-21T12:33:19Z")
I cannot help but think tinkering with abortion at this point would be like making number one on a third rail, shocking, mind-blowing and illuminating. Such a law would be a disaster for anyone who supported it. (On the other hand, it seems everything I type today is wrong, so consider that too.) ---
**Author:** ![asterion](https://avatars.discourse-cdn.com/v4/letter/a/4da419/32.png) [@asterion](https://boards.straightdope.com/u/asterion)\ **Post date:** [July 21, 2005, 12:37pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/37 "2005-07-21T12:37:20Z")
Forget airlines. I wonder if casinos would no longer allow pregnant women on the floor. (Can’t have a minor stopping on the floor, after all, even if it is in the company of a parent.) ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [July 21, 2005, 1:37pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/38 "2005-07-21T13:37:41Z")
Great case references thus far. Thanks! ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [July 21, 2005, 2:10pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/39 "2005-07-21T14:10:37Z")
> [@](#): > > by **Gadarene** > What if evangelical conservatives were to read a right to life into the Fourteenth Amendment and apply it to fetuses? As nice as it might sound, such as right does not exist in the COnstitution. And in truth, no one can guarrantee you life; it’s not possible. But it’s probably stretching the document quite a bit to pull that out of the 14th, though I admit the support it better than for Roe v. Wade, which, IMHO, was a very dangerous precedent. Roe stretched the law so far even SCOTUS doesn’t know where to go. And I really hate the idea that I now have a privacy right which seems to help me with nothing more abortions, which I cannot have even if I wante one, which I don’t! If they’re gonna give us a privacy right, I want it down on paper as a full Admendment. > [@](#): > > by **SentientMeat** > That would lead to an interesting new cross-border and transatlantic trade route Yes, it would. But it wouldn’t fool anyone, and the mere fact that someone else does it somewhere doesn’t make it morally acceptable here. There are countries where killing [Insert Person X] is accepted, if not entirely legal. Does that mean we shouldn’t have laws against murder of [Insert Person X] here? > [@](#): > > Calling a blastocyst a “person” is just as arbitrary, and considering conception to be the non-person to person transition is as backwards as Amish neuroscience. Aside from making clear that you don’t think much of us, you have failed to make any coherent point. I can think of many full-grown humans whom I don’t consider persons. Frankly, a clump of cells is morally better than many I could name. Face it: you have no actualy argument because you fundamentally don’t agree with our assumptions. But you cannot logically argue against those assumption - they are, or are not, independant of your opinion. Personhood has always been an arbitrary grant from the mss of society to one another. This is no different. > [@](#): > > by **Paul in Saudi** > Such a law would be a disaster for anyone who supported it. I thik you overestimate the support for abortion. ---
**Author:** ![Paul\_in\_Qatar](https://avatars.discourse-cdn.com/v4/letter/p/ccd318/32.png) [@Paul\_in\_Qatar](https://boards.straightdope.com/u/Paul_in_Qatar)\ **Post date:** [July 21, 2005, 2:17pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/40 "2005-07-21T14:17:14Z")
Wanna bet, say a Congressional majority on that? (On the other hand, it seems everything I type today is wrong, so consider that too.) [Previous page](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351.md?page=1) [Next page](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351.md?page=3)