Would a federal abortion law pass the Supreme Court?
Asked by
Smashley (
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June 24th, 2022
Federal bans on abortion have been proposed in the past, but the more salient issue now is whether abortion can be ensconced in federal law. It would seem the Supreme Court, who have much less interest in the commerce clause than courts of old, would just hold with today’s decision, reiterate that it’s not in the constitution, therefore it is a state decision (10th amendment).
Is there any chance in this direction, or is it just about keeping up the fight until there is a chance to remake the Court?
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19 Answers
The decision is that it’s not a constitutional right, and therefore it is up to the States. Depending on what state you live in (whether the State outlaws it or not) will depend on whether you are able to get an abortion legally or you’ll have to travel to a different state.
I believe that a federal law allowing abortions would be seen as constitutional. It would be the legislature operating under their authority to create laws.
@Hawaii_Jake – but the 10th amendment clearly leaves powers not discussed in the Constitution to be reserved to the states. The Commerce clause has always been the workaround, but that feels unlikely with this court.
I would agree with @Hawaii_Jake that a federal law legalizing abortion would not be unconstitutional and therefore allowed. The court ruling was not that abortion was unconstitutional but rather that limiting it was not unconstitutional. The court is not designed to make law but only to resolve conflicts in the law.
@Jaxk – but under what authority? That abortion affects interstate commerce? This, as far as I see, is the only way the constitution allows the federal government to get involved, since abortion is not covered under the constitutional right to privacy, apparently.
@Smashley – Admittedly, I not a constitutional lawyer but I’ll put down a few thoughts. The privacy argument was always very weak. Even RBG thought it was weak. The Commerce Clause has been upheld for some very very dubious laws but it actually has some merit in this case. Newsom is planning to make California an abortion destination. That is interstate commerce. In fact traveling between states for abortion in general is interstate commerce. A better lawyer could likely come up with better support than I have but the fed has a way getting what they want, by hook or by crook.
I need you all to understand that consistency does not matter to today’s court. They will simply do whatever they want to do and then find a justification for it.
I agree with @Mariah. This court has demonstrated that legal justifications are secondary to ideology. States rights?—sure… if it supports my position, otherwise?—nope!
I’m sure the theofascist SCROTUM (Supreme Court Republicans Of The Unelected Minority), would NOT want pro-choice protesters carrying concealed weapons in front of their houses or into the SC building.
Yes – but the real battle will be in Congress.
By now everyone should have had time read and absorb the Supreme’s decision, either in the official ruling or the leaked draft. Frankly, it’s a corrupt and unjust piece of political shit dressed up in judicial robes and served to “conservative” power brokers as a paid favor. It attacks the “egregiously wrong” quality of reasoning in Roe vs Wade, but applies it’s own obviously twisted factual and legal analysis to justify overturning a 50 year precedent that allowed women to control their own bodies.
BUT – when you hold your nose and look close, you’ll see that it leaves one door open for federal intervention: The Supremcacy Clause and Article 1, Section 8 in the Constitution:
https://time.com/6141517/abortion-federal-law-preemption-roe-v-wade/
What that means is that a bill allowing unresticted access to medications which terminate pregnancy, and free travel accross state lines to obtain safe legal abortions can be become law nationwide.
The only problem is that when it comes to actually writing and passing legislation that would do anything useful, Republicans are snakes and Democrats are pussies. It will be up to ordinary women to organize, fight, and push fuckwad politicians to do the right thing.
@Mariah! So wonderful to see you here after so long!
(@Smashley, please forgive the digression.)
A Federal law regarding abortion will be about as possible as snow in August as long as WOMEN have the vote. This is why it is necessary to utilize the judicial branch to deprive women of that right as well as the right over control of their own bodies. Depriving women of the vote is just as possible in the hands of the right court. This court has women and a black man in the troop. It is a majority Catholic court, whose Catholic justices all swore their juridical independence from the pronouncements of their faith. I cannot state that they take orders from the pope, but the coincidence of their rulings conforming to his directives are worthy of note. And as for the brother, I have no doubt that both he and his white wife might be amenable to the restoration of slavery.
NIce to see you back @Mariah. I hope you are doing well.
Wait, here’s a federal law today’s Supreme Court would love:
H.R.1011 – Life at Conception Act
“To implement equal protection under the 14th article of amendment to the Constitution for the right to life of each born and preborn human person.”
“HUMAN PERSON; HUMAN BEING.—The terms “human person” and “human being” include each and every member of the species homo sapiens at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.”
@Call_Me_Jay – That’s the whole thing? I was expecting something more interesting. I don’t think even this court would buy it.
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