In the aftermath of the Dobbs decision, some conservatives are talking about passing a national ban on abortion. But I don't think they can do that.
The Constitution gives Congress the power to enact laws concerning certain enumerated topics: bankruptcy, immigration, terrorism, espionage, taxes, counterfeiting, and so on. Generally speaking, however, criminal law is reserved to the states. The exception is for criminal acts that specifically implicate federal interests: murdering a federal officer, for example, or robbing someone on federal property.
So could Congress enact a national ban on abortion? If they can't even pass broad laws against murder or assault, it seems unlikely. This is one reason that current federal abortion law is extremely constrained: The Hyde Amendment prohibits the use of federal funds to pay for abortions and the 2004 Unborn Victims of Violence Act applies to a subset of cases where the underlying crime is a federal offense. Broader applications might be possible using Congress's interstate commerce power—mailing pills across state lines, for example—but that's a long shot.
It's especially a long shot since Sam Alito spent about 20,000 words in Dobbs (a) talking nonstop about state law and its history, (b) giving no indication that the Constitution provides Congress any power over abortion, and (c) specifically denying that the 14th Amendment federalizes either the right or crime of abortion. As for interstate commerce, the current Court has been at pains to rein in the interstate commerce power, not expand it.
This is mere logic, of course, and conservatives on the Supreme Court can just ignore it if they want. Still, there are limits, even for these folks. They just signed onto a huge decision that, in every possible way, supports the idea that abortion is strictly a state issue, not a federal one. They'd have a hard time changing that any time soon.
POSTSCRIPT: Unfortunately, this same reasoning applies to any attempt to "codify Roe." Maybe I'm wrong, but I don't think Congress can do this either. And if they did, the Supreme Court would obviously have no problem striking it down since that would be consistent with the text of Dobbs.
All the civil rights America needs, right here,
https://i.redd.it/lvbmt855vz791.jpg
Conservatives want to legalize crime and criminalize humanity.
Well, at least Kavanaugh has been kind enough to grant that we probably have a right to interstate travel under the Constitution. How very kind of him, given his rant about getting back at Democrats.
I'm interested in following developments in the Department of Defense and its healthcare facilities. That seems like a possible avenue for the feds to challenge states.
What this decision has done is completely de-legitimize the Supreme Court. It is not a learned body interpreting our laws. Precedent is meaningless. There is no settled law. I fully expect that if two of the right wing judges dropped dead tomorrow that Biden’s Supreme Court appointees will overturn Dobbs and the other right wing decisions of this court. And any other previous decision liberals don’t like. I would think this would frighten 2nd Amendment as currently interpreted fans but I suppose they think the court will allow Democracy to be killed next election and forever enshrine the court as a right wing rubber stamp. They might be right.
They didn't have airplanes in the 1870s either, therefore Samuel Alito doubts they're real.
The Bruen decision boggles my mind. Justice Thomas found an individual right to self-defense in a Constitutional amendment that outlines a collective right to ensure defense of a state. Hard to take this any other way than that we live in Humpty Dumpty's world now.
As a long-ago undergraduate philosophy major, I have to ask: The Founders did not believe that human rights are conferred by governments; they are "endowed by their [humankind's] Creator". That is, rights are inherent to being human. But how are they recognized? Alito's opinion in Dobbs ascribes a special ability to recognize human rights to people who have been dead for a century or so, which ability apparently has since been lost. How does Alito explain this mysterious phenomenon? Isn't it more plausible to suppose that we have come to recognize a right to privacy, as people in the 19th century came to recognize that people of African origin were possessed of the same rights as those of European ancestry? That that right has always existed, and that our failure to recognize it in the past was just the same sort of failure as supposing that Africans could be treated as property? To err is human ...
Ah, I meant also to cite the Ninth Amendment -
It is these 'other' rights that Alito freezes in long-past times. But what is special about the people of that era?
Funny you use freeing the slaves as an example. Yes, when we come to realize that something as fundamental as all people being free, we passed a constitutional amendment. Same with voting for women. Thats how it is supposed to work, not the supreme court just making new rights up, like they did in Roe
If 5 justices decide that a fetus is a person worthy of 14th Amendment protections then that's all they need right there.
Exactly which explains why Kevin was all pissy this morning bitching about liberals suck at defending abortion rights because they won't exclaim emphatically that a fetus isn't a person. If he doesn't know full well how a national abortion ban will be established yesterday, he does today.
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