I wish I’d thought of this, but I didn’t think hard enough. While the Supreme Court can overturn state laws banning abortion because they’re unconstitutional (Roe v. Wade was decided on the grounds that abortion violated the right to privacy embodied in the Fourteenth Amendment’s due process clause), I don’t think the Supreme Court can overturn federal laws legalizing abortion. What bit of the Constitution could they use to do that? Well, I’m not a lawyer, but Elizabeth Warren, as recounted in Andrew Sullivan’s column this week, has proposed putting the specifications of Roe v. Wade (conventionally legal abortions during the first trimester) into a law, and a federal law can’t be overturned by the states. Click on the screenshot to read (the other two items are the mendacious pardons handed out by Donald Trump and Game of Thrones, a show I’ve never watched and in which I have no interest.
Sullivan argues that on many issues, like interracial and gay marriage, the Court has led public opinion, with liberal approbation growing after the court legalized these once-controversial practices. But public approval for abortion rights hasn’t budged since Roe v. Wade; the good news is that public sentiment is pro-choice and, if anything, that is growing:
Roe was decided in 1973. Unlike many other progressive Court decisions, this one didn’t budge public opinion. In 1975, two years after Roe, some 22 percent favored a total ban on abortion in a Gallup poll; today that number is … 18 percent. Back then, 54 percent favored a middle ground: keeping the procedure legal under restricted circumstances. Now it’s 50 percent. Twenty-one percent believed in 1975 that abortion should be legal in every circumstance; today that number is 29 percent.
So yes, there has been some change, with a small shift toward public support for abortion rights.
Sullivan recounts his own conflict about abortions, one shared by Christopher Hitchens. He’s personally opposed to it (he calls it a “grave evil”, drawing on his Catholicism), but sees it as a public good: that is, society is better off letting women make the choice. And he argues, as I have, that it’s a losing proposition to argue for “choice” by saying “women have a right to an abortion because it’s their own body”. Talk of rights won’t budge those who see abortion as murder, and so we have, and will always have, an impasse, especially with believers. When you assert that something is a “right”, you have to defend that right, and I’d prefer the pro-choice people to lay out their arguments for their views rather than declare abortion a “right.”
I happen to think that abortion should be allowed by a woman’s choice up to birth, as any line drawn will necessarily be arbitrary, and my own feeling is that fetuses don’t even begin to be sentient until they’re born,—at which time they can be adopted. Others will draw lines at other places, as most of them have. Sullivan mentions the laws in Europe—both Germany and Denmark don’t allow abortion after 12 weeks—and those seem even more arbitrary to me.
Sulivan on the impasse:
I can see why the court acted, although I think it made a big mistake. Abortion involves two fundamental and, in this case, directly conflicting American commitments: to life and liberty. We hold this truth to be self-evident: that life matters. We should affirm it always. And I have yet to read a single argument that clearly delineates with any objective authority when a human life, once initiated, becomes a human person. It’s an invisible line that is devilishly hard to draw. So although I have no doubt that a fertilized zygote is human life, I just can’t see that life the way I see a toddler or someone in their 80s. But I can grasp its basic humanness. To deny this reality seems to me to miss one key aspect of the debate.
At the same time, this is about the mother’s body. And in our ownership of our physical body lies our inviolability under the Constitution. We all have a natural right to our own bodies — and if we do not, then we have no natural right to anything, and America’s promise is a lie. The integrity of women’s bodies is therefore a core principle, inferentially buried in the Constitution. The right to life, in this case, is literally, physically, inside the bounds of liberty, i.e. within a woman’s body.
That’s my belief, after a lifetime of trying to think about this subject. And this is a particularly agonizing conclusion because the bodies involved are those of only half of humanity, women. This is not dispositive, but it behooves men to defer at least in part to the convictions of women who are in this predicament, or could be. For a gay man like me, this is doubly true. A certain humility is due.
I’m all for federal law saying something like “no state can restrict abortions before X weeks of pregnancy is over”, and yes, the American public does support Roe v. Wade in general. But would Congress support such a bill? I don’t think it could get through a Republican Senate, and surely Trump‚ or any Republican President, would veto it. But we can always hope for change a year from November.
This is sensible (is Sullivan still a conservative?):
. . . there was a reason that public opinion was moving in a pro-choice direction before Roe. The abstraction of ending abortion as a cause is far easier to support than the grim reality of enforcing an actual, tangible ban. And national legislation — or even a federalist outcome, where different states choose different options — would, in my view, highlight the government’s overreach in policing women’s bodies in the red states that would impose a restrictive regime, compared with the freedom in neighboring states. I think such a reality would move public opinion more firmly in a pro-choice position. It would certainly make the extremism of some of the anti-abortion laws crystal clear to voters. It’s astonishing to me, for example, that the Alabama law actually exempts fetuses used in IVF procedures. They don’t need to be protected, it appears. “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant,” explained a state senator in the debate. This is an enormous gift to pro-choicers. It really does prove that for some, this is not about human life. It’s about controlling women’s bodies. If that is revealed in a post-Roe era, the momentum will be with legal abortion.
I say this as someone deeply committed to the view that abortion is always a grave evil. I could not personally have anything to do with one. But I live in a pluralist society, I will never have to be involved in such a deeply personal decision, and I am equally dedicated to respecting the sincere convictions of my fellow citizens, and their unalienable right to sovereignty over their own bodies.
The bit about exempting IVF eggs from the law really is telling, isn’t it?
I am glad you decided to revisit this issue in light of all that is going on and the bold move by Warren on the subject. This is what I have been saying and have said many times. I kind of thought, as with other matters, I was a one person opinion on this. Warren and many women think otherwise.
The idea that we are left helpless and without recourse to 9 attorneys in robes is just ridiculous. All I have heard is crying about the court as if they are the sole opinion here. As I said once before, the congress has passed approximately 20 thousand statutes since 1789 including the civil rights act of 1965. Did they need to wait on the courts – no.
> I don’t think the Supreme Court can overturn federal laws legalizing abortion.
They absolutely can. If they rule that a fetus is a human being, then depriving it of life is a violation of any number of stipulations in the Constitution. (Most easily, the 5th amendment) I’m not saying that is my position, I’m merely pointing out that is what they could rule.
This is the real problem with the abortion debate. Both sides are talking past each other. It comes down to a simple question: If a fetus is a human being, then abortion is murder. If a fetus is a clump of cells, then abortion is a simple medical procedure.
Also, if I remember correctly, Roe v. Wade was decided on the 4th Amendment, not 14th. 4th is right to privacy. If it had been decided on due process, then the long winded regulations that the South kept trying to put in place for decades to obstruct abortion would be legal, as they would be putting processes in place.
Yes, I think you’re right. They’ve already gone back and forth on capital punishment, for example, and that is used by both the states and the feds. I’m sure there are examples of federal law being overturned by the Court, though none come immediately to mind. Wait– didn’t the decision on marriage freedoms do away with the Defense of Marriage Act?
SCOTUS invalidated DOMA in Windsor v. United States in 2013, two years before it held that the constitution guaranteed a right to same sex marriage in Obergefell v. Hodges.
SCOTUS similarly overturned major portions of the McCain-Feingold Act in Citizens United v. FEC, overturned the contraceptive mandate of the Affordable Care Act in the Hobby Lobby case, and invalidated the pre-qualification section of the Voting Rights Act of 1965 in Shelby County v. Holder. Those are three other recent examples of the Roberts Court invalidating federal statutes that spring readily to mind.
I suppose the court can do anything if it is crazy enough. Dred Scott kind of told us that a long time ago. But the court can be pretty much ignored if people do not agree. Just look at what the conservatives have done on Brown and on Roe V Wade. People always find ways around decisions they don’t like. But frankly, announcing that a fetus is a person with all the rights of a person – I do not think the court will ever say that. They are Catholics but not the Pope. Talk about the rights of a woman before a fetus.
Short of declaring a fetus a human being, they could also easily rule that such a law is a violation of the 10th Amendment. Just last year, the supreme court overturned a federal law that prohibited states from authorizing and licensing gambling on sports.
The court essentially ruled that congress could regulate gambling itself, but if it does not, then it can’t prevent states from doing so.
Quote: “PASPA ‘regulates state governments’ regulation’ of their citizens. The Constitution gives Congress no such power.”
A federal law declaring that state cannot regulate abortion would be unconstitutional under similar grounds.
https://thehill.com/regulation/387560-supreme-court-strikes-down-law-banning-sports-betting
Blackmun cited the 14th and the 9th, though it was the former that weighed the most;
— Roe, 410 U.S. at 153.
I’m curious then. If the court is going to overturn Roe v. Wade, what advantage is there to adopt a federal law upholding Roe v. Wade? Only the idea that the court is less likely to rule that a fetus is a person than to rule, as they did, that a pregnant mother has a right to privacy via abortion?
I suspect both sides would feel more comfortable with a law that actually was about abortion instead of distant connections to Constitutional definitions of privacy and the like. A federal law would also prevent it being different in each state. States creating their own laws, like they are doing now, will cause women and doctors to cross state lines to their advantage. Actually, I suspect the new state laws attempt to block that but there are bound to be loopholes. There will also be people moving from one state to another and boycotting of states. There’s a sense in which a federal law would settle it once and for all but, of course, it would only do so until they change it.
The advantage is, we’re all talking now about the genius of Lizzy Warren, whose campaign was stagnating.
> If the court is going to overturn Roe v. Wade, what advantage is there to adopt a federal law upholding Roe v. Wade?
I suspect it’s much more about Democratic Primary Politics than anything else.
But if the court merely struck down Roe v. Wade, but did not rule that a fetus was a human being, then the decision would turn back to the states. All the evangelical states would immediately ban abortions and the rest would keep it legal.
The reason for a federal law banning states from banning abortions would be to prevent those evangelical states from banning abortion. Such a law would, however, face a significant 10th amendment challenge, which is why I am much more inclined to believe that this is about the Democratic Primary than something that would actually be made into law.
Personally, I don’t think the Supreme Court is going to overturn Roe. The lower court will strike down the “heartbeat” laws and the supreme court will decline the case.
The argument that fetuses are “persons” under the US constitution has been roundly rejected by the Supreme Court, and is without any support in the text or history of the US constitution. That’s why a constitutional amendment conferring “personhood” upon fetuses is the ultimate goal of the “pro-life” movement.
If the Court (or an amendment to the US constitution) were to hold that fetuses qualify as “persons” under the US constitution, it would perforce mean that abortion would have to be punished exactly the same as murder. To do otherwise would be to deny fetuses the equal protection of the law under the Equal Protection Clause of the 14th Amendment.
If, in fact, fetuses are deemed to qualify as “persons”, abortion seekers would have to use alternative means. They would not have to go through the elaborate charade of taking a vacation trip to Europe, or resorting to coat hangers. Now that safe chemical abortions can be more easily had, I suspect the status quo would be, for the most part, maintained. Abortion would be available to all from coast to coast. Fingers crossed.
If fetuses were to be deemed “persons” under the US constitution, I’m pretty sure all methods of post-conception methods for terminating pregnancies would be immediately declared illegal by the FDA, and their black-market use made criminal.
True fact?
No way could the FDA permit products to remain on the market when their sole purpose is to act as the instrumentalities of “murder.”
The drug misoprostol is used to prevent ulcers and some other conditions. However, it can also be used to induce abortion. It is becoming more widely used now that Texas and other states are reducing other options. Here’s a write up.
https://www.reuters.com/article/us-abortion-usa-texas-doityourself-idUSKCN0YF1BC?fbclid=IwAR3r5CH899tTPrH_xBjIL4KbNZIyRO6RBzgfjnoPJ7lAf38h6ERBZXAZHiQ
This is actually why there is no “rape or incest” exception. If abortion is murder, then the method of conception is not relevant. This is part of what I was saying about the “talking past each other”. If you believe abortion is murder, then the only way an abortion can be performed is when there is a case that the mother’s life is in danger.
If you try and argue with the pro-life side about a woman’s bodily autonomy, it doesn’t get you anywhere, because a life trumps an inconvenience. The argument is intractable.
Not necessarily. There are people who can be killed legally, so maybe fetuses are in that category. I happen to be opposed to capital punishment, but the principle exists there. Ditto for killing in war.
(I suppose these could work by making someone a non-person – Ken?)
Then what stops a Republican Congress from passing a law that makes abortion a Federal crime? If Roe is overturned, I’d just as soon leave it to the States.
When we leave it to the states (or they attempt to engineer it) we see laws like the ones they are passing. Laws that make it a felony to assist a woman leaving the state to have an abortion.
But if we decide to make it a Federal issue, a Republican Congress can make abortion a crime everywhere in the nation. I’d rather see abortion illegal just in benighted states like Alabama rather than everywhere.
As Darwinwins suggests, if we leave it to the feds we’ll see whipsaw changes in the law bouncing back and forth as one party or the other gains power.
Let the court decide.
Probably not. Labor law (Unions, etc.) is Federal and has changed very slowly over time. When was the last anyone mentioned Norris–La Guardia or Taft–Hartley? How many people even know these laws event exist?
They are generally unknown and very important.
I don’t think organized labor has ever stopped mentioning Taft-Hartley since it was enacted in 1947, and severely restricted the rights granted it under the National Labor Relations Act of 1935.
Anyway, I’m not sure labor law provides an accurate analogy for abortion laws. The former is much more clearly with congress’s authority under the Commerce Clause than is the latter, and is nowhere near the hot-button kulturkampf issue that abortion has become.
There is an underlying assumption about late-term abortion, that women cavalierly decide to “kill their babies”.
The reality is that late-term abortions are nearly all precipitated by either life-ending fetal abnormalities, or grave danger to the mother.
There aren’t any doctors who will perform late-term abortions just for grins. And, there really aren’t any women who want abortions at that point just for grins.
Even Andrew Sullivan finally acknowledge this. He said that after doing the research, he concluded that abortions should be legal, since the circumstances surrounding late-term abortions were uniformly horrible.
I think we need to confront that attitude about women. Donald Trump personifies this; his rant about women and doctors deciding, postpartum, about whether babies should live is representative of the conservative view.
L
I agree that nobody does this lightly, but it does not follow that therefore it should be legal in any circumstance. The big problem is that there is no functional difference between late abortion and birth plus infanticide, as removing the unborn is conventionally called birth when it could survive and grow (reasonably healthy) to maturity with the aid of modern medicine.
It can only be considered an abortion when the development is actually terminated before prematurity. Without this detail, late-term advocates need to be more honest and call it infanticide. Since infants continue to have no memory and are not more “advanced” in other ways than pets or animals we slaughter by the millions, it could be asked why not allow infanticide up until a few years later.
The reason is of course that we recognise an inherent worth in other humans; recognise that they could rely on other people (e.h. adoption) and thus the bodily autonomy argument doesn’t hold anymore.
In my view, as expressed earlier, it’s FAR more important that women have good, no questions asked, speedy access to (earlier) abortions, long enough to know they’re pregnant, long enough to sleep over a couple times it and consent to it, and close enough (not hundreds of miles away). More like a visit to the dentist. Pushing the date later down the pipe puts a burden on the medical community, makes the procedure rarer, more contested, and ultimately harm the majority of women who wish to abort. Rarer and specialised clinics also attract unwanted activists.
Often, the reasons that csn trigger late-term abortions are not able to be discovered until the third trimester, so your ASSumption is wrong.
In most developed countries abortion “on demand” is usually limited to the first trimester. Sweden (18 weeks) and the UK (24 weeks) are outliers.
Former communist states tend to have unrestricted abortion.
The debate in the U.S. seems to be very polarised – complete ban or “no limits”.
There hasn’t been a “complete ban” on abortion anywhere in the US since 1973, and no US jurisdiction has ever had “no limits” on abortion either.
When did the tactic of mischaracterizing the opposition’s position start? LOL
Expect Republicans to stop conflating elective and medically necessary abortion at about the same time they stop conflating asylum seekers (who voluntarily turn themselves in to border authorities) with illegal immigrants who sneak into the country undetected. In other words, never.
Actually, it’s the Dems who of late have been conflating asylum seekers who immediately present themselves with illegals who claim asylum only after getting caught trying to sneak in.
Which is why it was a strategic blunder of epic proportions for pro-choice zealots to risk Roe by picking a fight for unrestricted late-term abortions.
Even if a federal law protecting abortion rights everywhere would be ruled constitutional by the Supreme Court (which is doubtful), such a law has little chance of passing even if Trump is voted out of office. This is because the odds of the Democrats taking over the Senate after the 2020 election are very slim even though many more Republicans than Democrats are up for office. Most of the Republicans are from red states and are very likely to be re-elected. Even if the Democrats take over, they would not have enough votes to overturn a Republican filibuster. Also, some Democrats from red states may not vote for such a law. Would the Democrats end the legislative filibuster to pass this legislation or some other? Probably not, but things can change.
There are some things that can be done to support abortion rights. First, the blue states, through state legislation, need to guarantee easy access to abortion. The second thing is that a pro-abortion billionaire should establish a system whereby women that reside in restrictive states and cannot afford to travel to pro-choice states would be provided with free transportation to and from abortion clinics in pro-choice states as well as free care from the clinic. In this once instance at least, poor women will not be deprived of this medical procedure. This would take the wind out of the sails of the anti-abortion states. I’m surprised that this has not already been done.
There are charities that do that (provide funds to women who can afford the service they need), but billionaire funding would certainly be appreciated.
I think it’s possible. They overturned parts of the Voting Rights Act that had been federal law for 48 years.
The only part of the VRA the SC overturned was the formula that determined what states were subject to ‘prior-approval’. The concept of a ‘prior-approval’ formula was not overturned. The concept of a formula for determining what states were subject to ‘prior-approval’ was not overturned.
The SC changes to the VRA were tiny.
Nevertheless, SCOTUS overturned existing federal legislation.
Tiny in number of words, perhaps, but a big impact in terms of voting rights.
“Tiny” in terms of the percentage of text of the VRA affected, they may have been. But barely was Chief Justice Roberts’s signature dry on his opinion for the Court in Shelby County v. Holder before states that had been covered by the VRA’s pre-clearance provisions began enacting voter-suppression measures that would have required pre-clearance by the Civil Rights Division of the Justice Department before Shelby County was decided.
The Court invalidated the pre-clearance provisions even though those provisions had been reauthorized by congress with broad, near-unanimous bipartisan support in 2006.
I think many people (men) remain ignorant on abortion in America today. You can find out on the internet in a very short time. Also listen to some of the women who have told their story. I heard one yesterday on TV. She was 19 when she needed to abort. Was in school and working on a degree and certainly did not have the ability to have children then. The way it is done during the early period, first 10 weeks after the last menstrual cycle is via medical abortion. This is the common practice by many and does not require hospitalization or clinic. Not pleasant but necessary.
Before 14 weeks aspiration curettage is the preferred option by most women. It is quick (important is situations where abortion id frowned upon)and does not really need follow up, unless this or that symptom or sign.
“Medical” abortion by hormones (such as misoprostone) is the best option in later term abortions. It may take some time though, a day or two, and can be distressing to the woman, expelling a non-viable, but definitely baby-looking fetus.
Actually, the idea of putting abortion rights into law is an old one. Many, on both sides of the issue I assume, have felt that it is not something that should hang on the Supreme Court’s decision. After all, the Constitution doesn’t directly address the issue. On the other hand, putting it into law also makes it easy to repeal that law or countermand it with a new law. Making it a constitutional amendment would do the most to lock the decision down. Of course, that’s not very likely to happen.
I disagree with Jerry that abortion should be “allowed by a woman’s choice up to birth, as any line drawn will necessarily be arbitrary,….”.
Any ‘line’ is arbitrary of course. Once the fetus is viable, I do not think it is the woman’s choice only.
Note that those late term abortions are rare, and that often it is a dramatic and tragic ‘choice’ involving severely malformed or ‘not longer term viable’ fetuses.
The formation from a clump of cells to a little human is a process. And IMMO that should be reflected in abortion regulations.
On demand until an arbitrary period (often 12 weeks), for socio-economical circumstances or psychological reasons a few weeks later, for rape and incest a few more, and for severe malformation or risk to the (what we can call by them by then) mother up to (and even after, see Singer) birth.
It is done that way in countries as different as Holland and South Africa, and most importantly, it takes into account that the formation of a baby from a clump of cells is a process, with many, admittedly arbitrary, ‘lines’.
When you proclaim – I do not think it is the woman’s choice only, you leave it wide open. Is it then the guys in the robes, the legislature, the church, you….so many choices. How about a doctor and the patient? When you go in for your cancer problem, how many are there for that one?
Randall, I’ve been carrying out abortions, although I think it is a ‘bad’ thing. It is just the lesser of two evils. I think the woman’s choice is the most important, that is the very reason I did carry out hundreds of terminations. No one forced me, it was my choice.
In late term abortions, I just do not think that ‘the mother does not want’ is a fully ethically sufficient argument.
I mean, contrary to a 10 week fetus, a 22 week fetus really already is a kind of baby, and close to viable. I think that in order to carry out an abortion there we should have more than the unqualified demand of a woman. I’d like to see some more good reasons. And no, I do not think that necessarily leaves the question ‘wide open’
But the question still remains, who makes this decision if not the doctor and patent. In America this leaves it to 50 states and we know what that does. I don’t want to leave it to attorneys and judges any more than to some religious idea. Maybe a medical committee comes in after so many weeks, I don’t know? One other thing will certainly be in the room if insurance coverage is involved. They stick their head in for everything else.
Yes, that remains, and I do not have a good answer.
I also note that in late term abortions the mother is generally wanting a baby, but is put before a heartbreaking choice: abort or give birth to a severely deformed fetus with a short life expectancy, and full of suffering at that.
But the question still remains, who makes this decision if not the doctor and patent. In America this leaves it to 50 states and we know what that does. I don’t want to leave it to attorneys and judges any more than to some religious idea. Maybe a medical committee comes in after so many weeks, I don’t know? One other thing will certainly be in the room if insurance coverage is involved. They stick their head in for everything else.
In the UK (and the US?), the cut-off date for abortions on socio-economic grounds is based on calculations of when the foetus is likely to be able to survive independently outside the womb, and is therefore currently 24 weeks. There have been attempts to reduce this to 23 or even 22 weeks on the grounds that foetuses of that age have been known to survive. But such cases are so rare that the law has stayed as it is for the past 52 years. Later abortions are permitted only on specific medical grounds.
Sounds fair to me.
There will come a time, and maybe not too long from now, when we can rear a fertilized egg in vitro from fertilization to birth. Does this mean that ALL abortions must henceforth be illegal? Every regulation that depends on viability is susceptible to coming medical improvements.
About half of fertilized eggs do not implant in the woman’s uterus, and are flushed out with her menses. If the hardcore “pro-life” folks were serious about fertilized eggs being ontologically equivalent to postpartum people, they’d start a Manhattan-project style Operation Rescue to retrieve those eggs from all the world’s discarded maxi-pads, so they could be brought to term in vitro (or forcibly implanted surgically in the bearer’s womb).
With all those billions of souls getting flushed down the toilet throughout history, you’d think God would have warned us about this ongoing catastrophe long ago. Even if we didn’t have the technology to save all those little babies, we could at least punish women for their sinful biology.
I’d agree that any lines are arbitrary, albeit not completely so.
“Viability” is not a very good line, since it is moot indeed. Regrettably it is the ‘line’ in RvsW.
Viability is a slippery slope, as is dependent on the state of the art (or rather technology). Suppose some day it is possible to keep (say) a one-day old blastocyst alive in an artificial environment …
Correctamundo. Viability is not a reasonable criterion. The way to look at it is that development is a gradual process, so the legal stage for legal abortion is arbitrary. The current law recognizes this. During the first trimester, governments can not prohibit abortions at all; during the second trimester, governments can require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when abortion was necessary to save the life of the mother. This is the balance the court struck, and I think we should stick with it. To liberalize abortion would be politically upsetting to many. To constrain it further would induce extra hardship on women.
Tangential but Nate Silver and his 538 crew have become my favorite source of political analysis.
https://fivethirtyeight.com/features/three-reasons-theres-a-new-push-to-limit-abortion-in-state-legislatures/
And now, for something completely different. George Carlin:
https://www.youtube.com/watch?v=AvF1Q3UidWM
Always the right answer.
Yeah, that was great! Thanks.
Warren the legal whiz apparently is ignorant of Marbury v. Madison.
“I don’t think the Supreme Court can overturn federal laws legalizing abortion. What bit of the Constitution could they use to do that?”
Aide from the general ability of the Supreme Court to find a pretext for anything, we have the 10th Amendment to the constitution.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
In other words, the SC could trivially strike down any Federal law legalizing or outlawing abortion.
What’s the constitutional basis for saying that abortion is a right to be decided at the state level?
Oh, I see what you are saying. The Constitution doesn’t reserve abortion for the feds to decide so the states get to decide it. I don’t know the principles involved but I don’t think it works this way. States could decide their own laws regarding cell phones because they aren’t mentioned in the Constitution. The rights given to us at the federal level are interpreted broadly, much as Roe made abortion a privacy issue.
PT, States can (and do) regulate phone service because Congress gives them the power to do so. The Interstate Commerce clause giver the Federal government ultimate power to regulate phone service. If the Federal government wanted to ban State regulation of phone services it could do so.
Right, because phone service is commerce and crosses state lines. It’s all in what part of the Constitution SCOTUS bases its decision on. It might be hard to consider abortion as an interstate issue though if doctors and patients crossed state borders, then they would decide it must be settled at the federal level.
“In other words, the SC could trivially strike down any Federal law legalizing or outlawing abortion.”
That would be nullification and unlikely to stand. Under the Supremacy Clause, Federal law is superior to State law.
The question is whether the Federal government has the authority to legalize or outlaw abortion. SCOTUS may well decide that laws regarding abortion are under State authority.
And where is Ken Kukec when we need him?
That character’s never around when you need him, but always underfoot when you wish he’d go away.
Oh sorry. For some crazy reason, I read SC as South Carolina. My comments are moot and from now on I will be mute.
The SC has the power to rule on the constitutionality of Federal laws as well. cf. Marbury v. Madison (1803)
Warren is an ardent defender of partial-birth abortion at any point in pregnancy. If the public has to choose between Warren and Trump on this issue, Trump will blow Warren away.
Back in the Bush (43) administration Partial-Birth abortion was outlawed. The Bush administration believed that it would win in the court of public opinion and in the actual courts.
They were correct on both counts.
“If the public has to choose between Warren and Trump on this issue, Trump will blow Warren away.”
True if Warren hired you as her campaign manager. 😉
That’s funny…..
I think Trump will blow Warren away on any issue.
Dunno how closely you’ve been following US 2020 presidential politics, Maya, but Elizabeth Warren has been dropping written public policy positions like a 1980s DJ dropping mix-tapes at a house party up in Harlem.
You’re certainly free to disagree with Warren’s policy positions, but Elizabeth Warren has forgotten more about public policy than Donald Trump will ever know. No way could Trump “blow her away” on any policy issue in a debate.
Sadly, Elizabeth Warren could roundly defeat Trump on any issue at all, judged by any criteria of reason, logic, justice, fairness or humanity.
Then tRump would open his fat yap and appeal to prejudice, ignorance and bigotry and ‘win’ the debate.
8-(
cr
I didn’t mean that he will “blow her away” in a debate (what is actually Trump like in a debate? Like an elephant playing ballet?”, I meant the voting.
No way could Trump “blow away” anyone in an election. Trump has the support of only about 40% of the electorate. According to the this Fox News poll a couple days ago, 46% of American voters say they will definitely vote against Trump in 2020, and another 10% say they’re likely to vote against him. Only 28% of voters say they will definitely vote for Trump, and another 12% say they’re likely to vote for him.
Donald Trump’s 2020 reelection strategy is clear: Keep his base agitated to encourage its turnout. Depress the other side’s turnout by going relentlessly negative on his Democratic opponent (and the current crop of Democrats seeking the nomination). Hope the meddling of Russians (who’ve managed to hack into the election data bases in several states) can put him over the top (given that he’s done nothing to discourage Russian interference), as it came within 3 million votes of doing in 2016.
I keep warning people: Trump could win again. If the stars align (again) – economy boost, “caravans” of migrants, Russian help, voter suppression, and a Dem blunder or 2 – it could happen.
So many people tell my “Trump can’t win with 40%” and I ask them “what states are the Dems going to flip from 2016?”
Donald Trump said he supported “partial birth” abortion just two decades ago (see below). Then, during his 2016 campaign, he said he was in favor of “punishing” women who terminate their pregnancies at any stage. What Donald Trump has never done is give any serious thought to the issue.
“What Donald Trump has never done is give any serious thought to the issue.”
I think that could apply to every issue.
cr
Has he ever given serious thought to any issue? Is the man capable of serious thought?
I mean, he maybe a savvy tactician, but serious thought.. seriously?
Not even a savvy tactician…
He won. And regardless of the claims made here, he has a very good chance of winning again in 2020. The only thing that he is clearly for is himself, and his preponderant tactic is disparaging and decimating his opponents. Reagan stated that the Oval Office is a reflection of the American people, and sadly a large portion of the populace simply cannot see through his myriad outright lies.
I watched “The Office” once for a few. Shook my head in disgust and went back to watching 30 Rock.
Was that the American version of “The Office”? The original UK version with Ricky Gervais is much better, IMHO.
Yep American version.
For some reason I couldn’t find either version of The Office funny (and I’m not easily grossed out…”
I’m not an expert on the heads of power, or “enumerated powers”, in the US Constitution, although I used to be fairly expert on Australian constitutional laws, which has some analogies. (Constitutional law was one of my areas where I specialised at law school.) The first question I’d be asking is which head of legislative power would the federal Congress rely upon in enacting such a law. Congress can’t simply make laws on whatever it wants, only on the topics enumerated in section 8 (and a scatter of other sections) of the US Constitution. Generally speaking, the ordinary powers to criminalize conduct within the states lie with the state legislatures, not the federal legislature (that’s also the situation in Australia).
The tendency in Australian law has been to read the equivalent heads of federal legislative power broadly, and perhaps that’s also the case in the US. IIRC a lot of things have been held to fall within the commerce power, for example.
In principle, however, the Supreme Court certainly does have the authority to examine whether a federal law purporting to make abortion throughout the US falls within one of the heads of federal legislative power. As others have mentioned, there could be other issues, but this issue – that of whether or not a law that’s under challenge can be characterized as falling within the powers of the relevant legislature – is always the first & most fundamental one.
If there are any experts on US constitutional law reading this, maybe they could comment on the characterization issue (I don’t know whether the term “characterization” is used in this way in the US, but I hope it’s clear). I’d obviously defer to their expertise.
That should say “to make abortion legal throughout the US”.
I think Congress CAN make whatever law it wants but it may be challenged in court, ultimately the Supreme Court. I am not sure constitutionality is the only basis for rejecting a law but it seems to be the one that matters most.
My guess is “characterization” is not the term they use but I am not a constitutional law expert.
Sorry, Paul, I didn’t mean to say that they can’t physically enact whatever statutes they want. But if they enact a law that’s beyond their allocated powers it will, if challenged, be held to be unconstitutional (or partly unconstitutional if only some parts of it, or some applications of it, are outside of the legislature’s powers). I hope that’s clearer.
Congress must rely on one of its enumerated powers. It most commonly uses the Commerce Clause as an often highly-tenuous cover.
Scott Lemieux of the Lawyers, Guns, % Money blog comes down very hard on Sullivan for his reasoning (http://www.lawyersgunsmoneyblog.com/2019/05/dont-worry-your-pretty-little-heads). Some excerpts:
“…the limitations to a legislative solution are blindingly obvious:
[Warren’s] proposed legislation is DOA as long as Mitch McConnell is majority leader.
Even if the next unified Dem majority can eliminate the filibuster and pass a bill like Warren’s, the next unified Republican government will simply replace it with draconian national abortion regulations that apply in all 50 states, and that can only be repealed by unified Democratic governments.
Since the Senate vastly overrepresents the anti-Roe minority, the equilibrium, will tilt much towards the latter.”
Also:
“Directly as the result of a Supreme Court decision, Canada has arguably the most liberal abortion policy in the world, and this has been 1)a politically stable result that 2)works very well as public policy, with none of the parade of horribles suggested by people who argue that women can’t be trusted and need to be subject to lots of arbitrary restrictions even if not a total ban. It reveals Sullivan’s underlying claim that abortion is only a divisive issue in the United States because the courts got involved as the completely ahistorical nonsense that it is.
And even if the claim was true, it’s also irrelevant. Maybe judicial review wasn’t necessary to produce reasonable abortion policy compromises in Europe; it wasn’t necessary to undermining apartheid police states within those countries either either. Judicial review is part of the American political process; to selectively abjure it in the case of abortion requires an argument that reflects the fact of the unique American context.”
<blockquoteI’m all for federal law saying something like “no state can restrict abortions before X weeks of pregnancy is over” …
Under our federal constitutional scheme, Congress is a legislative body of limited powers, as delineated in Article 1 of the US constitution. None of the powers enumerated in Article 1 addresses abortion or contraception or anything having to do with women’s reproduction in any sense.
The only basis on which Congress could conceivably legislate in this field would be to exercise its broad authority to regulate “interstate commerce” under the Commerce Clause of Section 8, Clause 3 of Article 1 (a power that Congress has already received withering criticism for using to overreach the bounds of its authority).
Where congress exercises its Commerce Clause authority, it preempts the states from enacting any laws or regulations concerning the topic on which it has legislated (which would mean in this context that state legislatures would likely be powerless to enact laws that confer even broader abortion rights than what is conferred under federal law — as many states now confer broader abortion right than what is strictly required under the Roe v. Wade line of cases). I think a law completely preempting the states from having anything at all to say on the reproductive freedom of women within their borders would be broadly unpopular with the US populace in the long run (even if congress could muster the votes to get it passed it in the first place).
This sounds right to me. And yes, it’s s.8 of Article 1. In my post above, I should have said that – rather than saying s. 8 of the Constitution. The point is, though, that the law would have to rely on an enumerated power, and it’s difficult to see what power the federal Congress could rely on. Once again, laws on what is or what is not a crime are, as a generalisation, matters left, within the US constitutional scheme, with state legislatures (or common law, wherever that might still apply). The upside is that a Republican-controlled Congress would have the same problem if it tried to enact a federal law *prohibiting* abortion, even if it had a Supreme Court well stocked with judges willing to overturn Roe v. Wade.
I think the idea of a Democrat controlled congress will someday come about. Probably not too quickly, but at some point. When that happens, quite a lot could change. Right now we see the situation through the distorting lens of Mitch McConnell.
How is it that nearly all of the men here
cannot seem to simply .get. that:
IF one has no vagina, THEN one gets
to have .no. opinion?
As of thus:
https://twitter.com/saffroncobra/status/1129814130246979584
?
Blue
I do not fully agree there. Right to decide? No, only the woman in question, not other women.
Right to an opinion? Yes, even if deprived of a vagina or, more relevant here, a womb.
Also note that there are nearly as many female anti-choicers as male ones.
I do like the comparisons in the Tweet though.
This statement, Dr Stempels, reflects
i) men’s acknowledging the belief that
men’s control over women’s and girls’
autonomy and egalitarianism is threatened /
is universally understood to be in any and
every way … … omuckingkay ( as well as,
quietly, never, ever to be flipped or
reversed … … with women’s control over
A Thing of men’s bodies, eg, spilt,
haploid spermatozoa ) / is to not be thwarted
ii) that a lump ( but one ONLY inside of
a human who is a woman or a girl ) is a
person
iii) that en’soul’ment is a thing
( at any time … … of the lump or of the babe )
iv) that if some women disagree with
other women, then men in a democracy
automatically have an obligation, including
trotting .that. circumstance out, … … as .if.
that specific type of disagreement means or
effects A Thing.
The threat reflected is as o’thus:
http://www.washingtonpost.com/nation/2019/05/17/nevadas-legislature-women-outnumber-men-first-nation-carson-city-may-never-be-same/?utm_term=.bf70d22ca67f&wpisrc=nl_evening&wpmm=1
Dr Blue
Blue, the jazz trumpet of the WEIT comment section… Keep it up
As improvisational as Dizzy or Miles. 🙂
The no womb/no opinion is an atrocious argument, one unique in the history of democracy.
Not at all unique, Mr Matt atrocious or
otherwise, inside the definitions and
the Worldwide histories of egalitarianism and
( men’s bodily / anatomical ) autonomy.
Thus.
Blue
@Blue, I haven’t the slightest idea what it is you just said.
Mr Matt:
The reading of any dictionary, even cursorily, ‘ll help.
Well, maybe that will.
Out and gone.
Blue
It may be a bad argument but it’s not even close to being “unique in the history of democracy”. That’s hyperbole.
Give another example, then.
instantiation: the no penis / no opinion argument has been de rigeueur.
For centuries.
As any MCP knows, not, Mr Matt ?
Blue
You can’t even spell, much less make sense.
The bit about exempting IVF zygote and gastrulae is telling indeed. But we already knew that, of course.
If reducing the number of abortions were the aim of the so called “pro-lifers”, they would be on the barricades for the only way that has shown to actually do that: good sexual education and easy availability of contraceptives. And we all know they are not.
Exempting IVF ‘products’ is just the cherry on top of the hypocrisy cake.
IVF is entirely different from conventional conception (bear with me) in important ways that I think illuminate an ignored element of the objection to abortion.
1. IVF is deliberate, intentional. The intended outcome is to produce a family member (child, or offspring, if you like).
2. IVF is resource intensive, and much more that conventional conception in terms of medical procedures and money money money. If a mother opts for IVF, they essentially are going all the way. Abortion would really only be a procedure if there was a serious problem with the development. IVF is not a trivial. … didn’t someone get a Nobel Prize for work that solved IVF problems?
3. IVF does not satisfy any pleasure-seeking impulse.
… So what is the difference that I think is objected to so strongly but is less audible in the chatter? The experience of sexual intercourse. Need I elaborate? Criminalization of abortion – both of the doctor or the mother – because she can still do old school techniques – satisfies, I think, the need to punish pleasure-seeking behavior against various doctrines handed down by some religions.
I’m sure this point has been made before but I wanted to compose my thoughts here – thanks.
Yes, the contrast in attitudes towards abortion of IVF foetuses is salutary.
The people pushing this current bill either don’t give the slightest shit about actual foetuses and just want to control women’s bodies…or they’re so incredibly intellectually lazy that they haven’t spent more than thirty seconds thinking about the issue.
Of course in plenty of cases it’s both.
An interesting article on the subject, despite being written in 1991:
https://prospect.org/article/uneasy-case-national-law-abortion
On the question of the basis for an act of Congress:
“it could bar the states from interfering in access to abortion under its authority to enforce the guarantees of individual liberty that stem from the due process clause of the Fourteenth Amendment”
and
“the Commerce Clause provides a third basis for a uniform federal law, since inconsistent state laws will drive women to travel across state lines in search of abortion alternatives.”
Various survey results, including 69% agreeing that “even in cases where I might think abortion is the wrong thing to do, I don’t think the government has any business preventing a woman from having an abortion.”
Has the shipped already sailed? “Six or eight years without federal protection of choice will harden the status quo.” (written 28 years ago).
The 28th. Or maybe 29th, if He Who Should not Be Named needs another amendment to overturn the 22nd.
Well, we all know He would do it if he could, even if he claimed it was only for his children.
I wonder if [font face=”Blackface” size=”4″]He Who Should not Be Named [/font] will work as intended – that’s a more open question.
If the government demands a pregnant women to give birth to a child then the government should pay for the child until it is an adult and has the means to support itself, with maybe a college degree. GROG
Sub
I could not personally have anything to do with someone who thinks abortion is always a grave evil.
Abortion is not always, if ever, evil, and smearing so many with such a taint is in my opinion despicable.
“A grave evil” is a bad choice of words. I’m not sure he means it to have connotations of sinfulness though. At least I hope he doesn’t. I like Sully a lot.
I disagree with them on pretty much everything*, but never-Trump conservatives really are demonstrating a great deal of bravery in coming out so fervently against him. It’s easy for liberals to oppose Trump, but never-Trumpers like Sullivan and David Frum and Rick Wilson, whose friends and families are mainly conservatives, and whose acquaintances and work colleagues are mainly conservatives? That takes guts. I respect them for that. Time will reward them I think.
*Less so with Sullivan because he’s pretty much a centrist-liberal by now, which is not that far to my right.