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In It to Win It

(8,253 posts)
Wed Jun 29, 2022, 10:54 PM Jun 2022

A question I thought about while discussing the Dobbs opinion

My understanding of the Dobbs opinion is that the Court never says that Congress cannot regulate abortion and access to it. Additionally, Kavanaugh's concurrence seems to explicitly say federal legislation is one of several avenues for creating a new right.

The arguments that I've been is having throughout the day is that the Court doesn't touch on whether Congress can regulate abortion or not. Since there is no federal legislation regulating abortion, the issues falls to state legislation. On the other side of the argument is that SCOTUS says it's a state issue, and that Congress doesn't have the ability to regulate abortion because of the 10th amendment.

My question is that assuming a state will challenge a federal statute permitting abortions, what would the argument be to the Court for not striking that law down? My mind went to speculating. My thoughts first arrive at Congress's ability to regulate interstate commerce since people would literally have to find themselves traveling out of state and across states for abortion care. I'm just curious for other thoughts.

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A question I thought about while discussing the Dobbs opinion (Original Post) In It to Win It Jun 2022 OP
The arguments are, in a nutshell Effete Snob Jun 2022 #1
Thank you Joinfortmill Jun 2022 #2
Couldn't agree more here In It to Win It Jun 2022 #3
You know Effete Snob Jun 2022 #4
 

Effete Snob

(8,387 posts)
1. The arguments are, in a nutshell
Wed Jun 29, 2022, 11:13 PM
Jun 2022


First, this is overly-simplified, because what a "codification of Roe" looks like can be several different things.

RBG had noted that abortion regulations are, primarily, restrictions on medical practice - i.e. what is it that medical professionals, within the range of their expertise, are or are not allowed to do, and that could be a better framing.

For example, let's say that Congress passes a statute that states cannot punish or terminate licenses of physicians who provide abortions under (conditions defined in Planned Parenthood v. Casey) or something to that effect.

In the division between state/federal spheres of power, there are things that are up to states solely, things that are up to Congress solely, and things that overlap. When they overlap, then there are principles for determining whether the federal authority pre-empts state authority.

So, taking that federal law is it:

1. A federal law regulating medical licenses; or

2. A federal law regulating interstate commerce.

Those choices can determine the outcome.

The argument against is that the regulation of the medical profession is a longstanding area of state authority. States issue medical licenses and determine the conditions for getting and keeping them.

The argument for is that restricting the range of reproductive health care options has a substantial impact on interstate commerce.

But, you know what. If five justices want abortion to be illegal in as many states as possible, then they'll find the argument that suits them. That is the bottom line.

For a look at how the "is it interstate commerce" question works, a good reference is US v. Morrison, which struck down part of the Violence Against Women Act as usurping ordinary state police power over assaults and personal injuries:

https://en.wikipedia.org/wiki/United_States_v._Morrison

United States v. Morrison, 529 U.S. 598 (2000), is a U.S. Supreme Court decision that held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded the powers granted to the US Congress under the Commerce Clause and the Fourteenth Amendment's Equal Protection Clause. Along with United States v. Lopez (1995), it was part of a series of Rehnquist Court cases that limited Congress's powers under the Commerce Clause.

The case arose from a challenge to a provision of the Violence Against Women Act that provided victims of gender-motivated violence the right to sue their attackers in federal court. In a majority opinion joined by four other justices, Chief Justice William Rehnquist held that the Commerce Clause gave Congress only the power to regulate activities that were directly economic in nature, even if there were indirect economic consequences. Rehnquist also held that the Equal Protection Clause did not authorize the law because the clause applies only to acts by states, not to acts by private individuals.


Unsurprisingly, it involves the rights of women.

In It to Win It

(8,253 posts)
3. Couldn't agree more here
Wed Jun 29, 2022, 11:24 PM
Jun 2022
But, you know what. If five justices want abortion to be illegal in as many states as possible, then they'll find the argument that suits them. That is the bottom line.
 

Effete Snob

(8,387 posts)
4. You know
Thu Jun 30, 2022, 12:08 AM
Jun 2022

I didn’t think I’d ever get to that point. It’s not a new saying that the Constitution means whatever five justices say it means, but that’s where we are.
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