This court will do as it pleases. But having said that, assuming stare decisis actually still meant something, that ship sailed long ago. The sheer tonnage of federal laws that would evaporate given such a ruling would sink a fleet. It would be chaos, taken to its logical end.
10th amendment arguments tend to succeed for specifically enumerated state powers—e.g., how to run their own elections—and even then those powers are not inviolable.
The supreme court would object since it creates a new right. The constitution has limited rights for people. Even voting is somewhat limited, as states could decide how voting takes place. Many of the human rights we think of came from amendments. This is why the 14th amendment was connected to Roe vs Wade.
Read the Ninth.
I’m convinced. But I’m not on the Court. (yet).
I would also assume the government defends any federal law on commerce clause grounds.
Justice Thomas has written extensively about his views of the commerce clause, and I think he would reject any such arguments except as applied to transactions that actually cross state lines. See his concurrence in United States v. Lopez, 514 U.S. 549 (1995) and his dissent in Gonzalez v. Raich, 545 U.S. 1 (2005).
Perhaps most relevant was the case Gonzales v. Carhart, 550 U.S. 124 (2007), where the Court tackled the federal partial-birth abortion ban. It was taken as given that Congress enacted the law under its commerce clause. The law was written to that extent, “[a]ny physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion…”
Justices Alito, Thomas, and Chief Justice Roberts were on the Court at the time. Justice Thomas had also been on the court for the prequel, Stenberg v. Carhart, 530 U.S. 914 (2000), which involved the same physician challenging a similar state law.
Justice Kennedy wrote the Gonzalez opinion which Chief Justice Roberts, Justice Thomas, and Justice Alito joined. You can see the commerce power was mentioned only in passing:
A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.
Justice Thomas also joined Justice Scalia’s concurrence, which in relevant part said:
I also note that whether the Partial-Birth Abortion Ban Act of 2003 constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U.S. 709, 727, n. 2 (2005) (Thomas, J., concurring).
~Max
“Patience, Monty. Climb the ladder.”
Golly that’s obtuse.
It would take about 3 seconds after Harris signed the legislation for one of the red states to sue in their local Federal court claiming that state’s rights are being trampled here. The compliant Federal judge there would issue an injunction before the press had quit taking pictures of the smiling dignitaries at the signing ceremony.
The whole time that bill was being written, debated, and passed, the state AG would have been preparing their case against and on the day of the signing ceremony they’d have a set of lawyers stationed at the Federal courthouse watching the signing ceremony on streaming and hand in their long-since prepared filing papers instantly.
In about a week the Federal court of appeals for that all-red circuit would uphold the injunction pending trial. Meanwhile the law is stillborn. So now the DOJ gets to defend the law from the back foot of already being injuncted against.
Eventually, like within 6 months or so it’ll get to the supreme court. During which entire time the law has not been in effect. Or least not in the states where women most need federal protection.
A SCOTUS that doesn’t much care for law or logic will simply wave the state’s right banner and declare the whole law null and void.
That’s how it happens, and happens instantly.
States can initiate cases in the Supreme Court directly.
Article III, U.S. Const.
In all Cases […] in which a State shall be Party, the supreme Court shall have original Jurisdiction.
~Max
D’oh. Thank you. Even better for the Forces of Darkness.
Supreme Court hasn’t been very sympathetic to attempts by the states to invoke original jurisdiction. They declined to hear Texas’s challenge to the 2020 election, and just last month, declined to hear Missouri’s challenge to the NY prosecution of Donald Trump.
Appellate courts normally want to have a fully developed record from the lower courts, even if they eventually overturn, as was the case with the presidential immunity case.
Presumably that would happen very quickly. A red state DA would enforce one of their anti-abortion laws, the subject would appeal citing the new federal law and it would end up before SCOTUS before long
Just like Roe-Wade is settled law, there is nothing in the constitution giving POTUS immunity for official acts etc. etc.
Notably, the States challenged the federal Voting Rights Act under the Supreme Court’s original jurisdiction. The procedure (since the United States is immune) is to name the Attorney General as defendant, and enjoin him from enforcing the allegedly unconstitutional law. Oregon v. Mitchell, South Carolina v. Katzenbach.
~Max
This hasn’t seemed to bother them in the past. The way in which they ditched Row v. Wade, also theoretically dumped a whole bunch of other laws such as Loving v. VA, and they were only too happy to get rid of Chevron which pretty much sidelined the whole regulatory state. So overturning the entire basis of most of federal law would just be Tuesday for them.
Yep. As I said, this court will do as it pleases.
I had a constitutional law professor some 20 years ago who made the argument that the court ebbed and flowed from generation to generation (I believe her discussion concerned the scope of the interstate commerce clause).
And, indeed, the two oldest justices are Alito, aged 74, and Thomas, aged 76. Neither, I imagine, are paragons of health. Clarence, in particular, is quite heavy. And Scalia died at aged 79.
So Harris has a chance to replace them this next term, and almost certainly would replace them if she served two terms.
That would mean that the current 6-3 conservative majority becomes a 5-4 liberal court (and I really hope that she appoints two more women of color). And it’s 6-3 with Coney-Barrett a swing vote on issues of women’s rights.
Meaning, we could conceivably have a “correction”, if not outright overturning, of the more odious decisions of this court in 10-15 years.
I realize that’s a long fucking time to wait, and in the meantime activism at the state level is crucial, but it’s the most likely way that this issue is resolved.
Though both Biden and Harris have said inshrining Roe-Wade in law will be their first order of business. If they manage that (and it’s a big if, given make up of Congress and filibuster) it will likely be passed with the SCOTUS in its current make up.
In that case at least one red state DA will fancy their chances and file a case under their state anti-abortion law. Which will then immediately be appealed because of the federal law. That case we will inevitably end up in front of the SCOTUS. What will happen there is anyone’s guess, but given everything that has happened in the last few years I certainly wouldn’t bet against them finding the federal law unconstitutional for, you know, “reasons”.
Hard to say. All they really said was that the 14th amendment does not apply. Therefore there is no federal right to have an abortion. They never said anything about a federal law banning abortion.
Not quite 28 USC
(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens.
Justice Barrett (not hyphenated; she goes by her married surname even though she had retained her ‘uncleaved’ family name) has been somewhat more amenable to “women’s rights” and environmental issues than anticipated but she’s hardly a guaranteed “swing vote”. She has been distinctly pro-organized religion and an avowed “textualist”, as well as on record as opposed to abortion in all cases except where the life of the mother is in immediate jeopardy. That’s she not as hard right and pro-corporate as many people anticipated is a pleasant surprise but it doesn’t put her in rank with Sandra Day O’Connor. But agreed, both Thomas and Alito are unlikely to last another eight years, and even Roberts is kind of pushing tenure, all of which are arguments against trying to “pack” the court by adding more justices (a strategy that could easily backfire).
“National abortion access” is problematic simply because the Constitution says absolutely nothing about the regulation or oversight of medical practice or policy, and in general medical issues outside of the regulation of pharmaceutical manufacture and medical devices isn’t really an interstate commerce issue (although attempts to ensconce prohibitions in state law to prevent travel between states to receive medical treatment is). The essential premise of Roe v. Wade was always precarious at best, and the reliance upon that decision resulted in a messy patchwork of laws and regulations that were constantly pushing the boundaries even before it was invalidated by Dobbs v. Jackson.
Given the popularity of abortion access among the general public (even if it is a hot button issue with politicians) a push for a general referendum for a Constitutional amendment is a strategy which should be considered, albeit complicated by the fact that referendums have to be run as the state level, and getting 37 states to hold popular referendums might be a challenge given how much ground has been ceded to hard right conservatives at the state level.
Stranger
Unfortunately, there’s no way to force states to have referenda to ratify an amendment. There’s two ways that amendments can be ratified: the legislatures and state level conventions. Which one must be used can be specified in the amendment. Usually the one used is the legislatures, but once conventions were specified. That once was the 21st Amendment, which repealed the 18th Amendment (Prohibition). The reason that was specified was that temperance supporters dominated many legislatures or at least the state senates, so the conventions were an end-run around them.
So that points the way to get an abortion rights amendment passed. Assuming it can get through Congress (big IF), the amendment should require it be ratified by conventions. May not work, since the various legislatures could throw up roadblocks of various sorts.