First, is there any possible ruling that would make abortion *illegal *in every state? Probably not. Here is my answer from the first thread linked above:
Second, could Congress pass some sort of legislation that prohibits interstate travel for the purpose of getting an abortion?
While the analogy to the sex tourism laws is tempting. Those laws were passed pursuant to a treat, and therefore are governed by the doctrine of Missouri v. Holland(Congress may regulate according to a treaty on a subject that it could not regulate absent the treaty) and its progeny. But Congress pretty clearly has the power to regulate interstate travel under the Commerce Clause.* E.g.*, Katzenbach v. McClung; Heart of Atlanta Motel (interstate commerce includes the movement of persons through more States than one).
Third, could Congress simply outlaw abortion? The Commerce Clause jurisprudence seems to be heading that way . . .
Yep, it’s called the Constitution. It’s pretty simple - an abortion is an action, not a status. An act that is legal for citizens of a state must also be legal for out of state visitors. If, for example, the drinking age in Colorado is 20, both in and out of state residents can drink at age 20.
Marriage, OTOH, is conferrence of a bundle of rights. If your home state denies you the opportunity to obtain that bundle of rights, for whatever reason including SSM, the Mass. law says that you cannot come here to obtain those rights if you intend to exercise those rights in the state that forbids you to have them.
Polycarp is disginguishing between overturned and overruled.
McCorvey sought to revisit the actual case of Roe v. Wade. She filed a motion in the original case, in a Texas District Court, asking the court for relief from the judgment entered in that case under Federal Rule of Civil Procedure 60(b):
The rule requires the motion to be made within a reasonable time, and the District Court found that the motion was not filed within a reasonable time. An easily defensible conclusion. For instance, the rule provides a fixed time limit of one year for motions based on fraud and newly discovered evidence.
The Court of Appeals found that the case was moot because the statutes that *Roe v. Wade * invalidated had since been repealed. The Court did not address the question of whether she had standing. But she pretty obviously did not. In the original case, she was seeking an abortion and the state was preventing it. Now the state permits abortion, and she isn’t even seeking one.
I’m not sure this nomenclature finds support in the cases. First, the Constitutional Clause in question is Article IV, Section 2 of the Constitution:
The Court has held that states may discriminate bewteen residents and non-residents as long as it does not encumber fundamental rights in the process. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/piper.html;http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/priv&immart4.htm. Roe, of course, held that abortion was a fundamental right. But if it is overruled, a party challenging such a regulation will not be able to rely on Roe. OTOH, the Court seems to be using the term fundamental right differently in two different contexts. It has held that occupational opportunities are fundamental rights in the privileges and immunities context. The test appears to be whether the privilege “is important to the national economy.” Or whether the “activities . . . play an important part in commercial intercourse.”
Similarly, the Court does not really distinguish between status (or grant or denial of a license) and action. In Baldwin for instance, the Court upheld a statute that discriminated between residents and non-residents with respect to hunting licenses.
Actually, full faith and credit does not really come into play here. Full faith and credit applies to judgments–not licenses.
Then it avoids the messier matters of divorces. I can imagine someone on the losing side of of an alimony settlement fleeing to a non-SSM state. Massachusetts doesn’t have a good reason to limit their laws to residents, it looks like a way to avoid hassles. I’m hoping for a test case.
(IAAL). The court could frame a decision that went beyond simply returning jurisdiction to the states:
eg:
Utah Woman seeks to abort fetus; father objects, seeks injunction based upon personhood of fetus, alleges standing as parent to litigate the prospect of harm to his child.
Matter races up the appeals ladder; Supremes support father, find that fetus is “person”, therefore entitled to the protection of the state.
Anti-choice groups file in 50 states to enjoin named doctors from performing abortions alleging personhood of fetus. (question re:standing, given current jurisprudence re:challenge to general harm, but this is a piffle).
If a fetus is declared a citizen, with all rights --------then he or she has just as much a “right to privacy” as the mother. ==the state must “leave me alone”
You leave a fetus alone you tend to create born babies.
In this circumstance, it’s not a right to privacy, it’s a right to live. No one has a universal right to be left alone, not even one defined by the phantom “right to privacy” observed in the Constitution by SC Justices (readable only with their secret decoder eyeglasses). I think it’s in the part right after the “Right to party” section. Never give up the fight, folks.
Would you be so kind as to place your full real name and address, and hours that you will be away from home and your probable destination, in this thread, so that some of us can go search your house and others can stop and strip-search you? (You will cooperate, right? No right to privacy, after all!)
If a private physician is doing the abortion without state funding, how is the state not leaving the fetus alone? Isn’t that actually the complaint: the state is being asked to intervene on the fetus’s behalf, right?
State action is not at issue in the hypothetical I gave–rather the extension to the fetus of personhood which permits the father to litigate on “its” behalf against the mother.
What the consequences of such a formulation would be in the absence of such a particular claim from a specific man vis-a-vis a specific abortion is problematic. It would not be outside the realm of possibility, however, for a non-governmental agency to seek to force the child protective services in such a jurisdiction to move to interdict abortion (even in states that have as a matter of public policy decided to permit them) on the grounds that their mandate to prevent harm to children was being subverted by their failure to do so.
The New York City example, and the present controversy seeking receivership for the New Jersey DYFS (I forget exactly what the acronym stands for, but its their cps) are cases where the ABSENCE of action on the part of the state forms the basis of intervention by parties otherwise strangers to the case or controversy.
By “a piffle”, I was trying to describe the unlikelihood that Scalia & Co. would allow a small matter of intellectual honesty stand in the way of a result they were determined to achieve.
Actually, in my glibness I didn’t clarify my position, as I did in this thread (in fact, you actually responded to it):
Even the 4th amendment can’t possibly be construed to grant the sort of broad “right to privacy” people seem to have such affection for these days, right? Do you believe the “right to privacy” evoked in the Roe v. Wade decision has a textual basis? If so, I’m missing it. That was my point.
I’m also missing the part of the Constitution that says 2 months into a pregnancy, for example, it would be wrong for states to interfere in a mother’s decision to have an abortion, but beyond 3 months there could be a basis for some forms of prohibition. That the SC could actually state this in the decision is the textbook example of the court pulling something out of their collective judicial ass.
Would the internal logic of the decision have been comprimised to any degree if, as another example, they had decided the boundary was not the first but the second trimester? And if not, what does that say about the objective constitutional basis for the decision? To paraphrase George Will, what would their decision have been if the human gestation period was a prime number, say 11 months? The constitutional foundation for their decision would have required some spectacular algebra then, I’m sure. No matter, the right to privacy is so powerful, it exists in all its splendor without regard to logic or the actual words in the Constitution.
I don’t think the trimester formula was quite that arbitrary (although the neatness of the arithmatic is suspicious) but was based upon the premise that independent viability was a precondition for the accrual of personhood rights that the state might permissibly vindicate by prohibiting abortion. This, of course, raises a multitude of issues as neonatal medicine pushes the point of independent viability earlier and earlier into the pregnancy
If you would read the decision you would find that the distinction is not an arbitrary date rather quickening of the fetus. The first trimester rule is simply the concrete rule of the fuzzy concept of quickening.
Let’s concede this point. Where in the Constitution is the “viability clause”? Suppose they had said that abortions are verboten beyond the point where certain brain functions typically emerge. Not arbitrary either, but a substantially different opinion than the one they fashioned. Which one’s right? What part of the Constitution would you point to to support your choice?