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.
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.)
I agree that’s the probable result. I’m not sure what to think about it. A mixed blessing?
Which Lopez and Morris are you referring to?
Lopez
Morrison
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.
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.
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 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?
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.
Yes, but:
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.
Well since it says that citizenship required birth, fetuses are not citizens, so this protection is not granted to them:
However this one could be applies:
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.
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?
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.
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.)
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.)
Great case references thus far. Thanks!
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.
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?
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.
I thik you overestimate the support for abortion.
Wanna bet, say a Congressional majority on that?
(On the other hand, it seems everything I type today is wrong, so consider that too.)