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.
There’s a better argument for protecting abortion legislatively than there is for banning it. Banning it, you’re plausibly right that you’d need the Commerce Clause power, but protecting it you could do under 14th Amendment equal protection, as necessary health care for women.
Not saying the court wouldn’t strike it down, they almost certainly would, but it’s at least colorable and I think quite legitimately defensible.
I disagree. Congress’ ability to regulate issues of the health, safety, welfare of the populace is limited, and generally is weaker than the states. Congress can punish/reward states that do what Congress wants, but using health care as the basis is weak constitutionally, and likely would be overturned.
Look at Obama Care.
Under current Commerce Clause jurisprudence, Congress should be able to regulate abortion, either allowing, restricting, or banning it entirely. If some states allow abortion and others prohibit it, women must cross state lines to obtain abortions, and that's enough of a reason for it to come under Federal jurisdiction. As our host says, the current Supreme Court is very suspicious of Congress' powers under the Commerce Clause and may want to overturn some prior Court rulings, but they certainly have a reason to uphold Federal abortion regulations if they want.
If the Democrats pass a law legalizing abortion nationally and the Court overturns it on the grounds that abortion is strictly a state matter, it will be harder for the Court to uphold a later Republican law making it illegal. Maybe not impossible, but harder. So that's a reason for Democrats to do it. On the other hand, if Republicans gain control of the Federal government and pass a law against abortion and the Court says it's constitutional, it will be harder to rule against a later law making it legal again.
As for Justice Alito's cogitations on states' rights, you'd have to pretty naive to think they're going to restrain his future actions.
Harder?
As if Republicans are held by previous rulings.
Didn’t Kavanaugh’s concurrence explicitly say that Congress can ban abortions? I can see the Supreme Court ruling that since Congress has passed a law saying a fetus is a human being with rights then who are we to disagree. Seriously KD, your naïveté is astounding, you sound like Susan Collins.
It does not explicitly say Congress can ban abortions. It says Congress can act on abortion but is very vague on what that means and how it would be treated if there was a conflict with a state law.
Jeebus [redacted], Kevin: you actually think the Federalist Five give an airborne intercourse about logical consistency or the text of the Constitution? When a future Republican Congress inevitably enacts (and Republican President signs) a national abortion ban, Alito and company will *absolutely* declare that a valid federal power. I don't know what BS reason they will give to justify their ruling, but they absolutely will declare the law valid.
Yup. This SCOTUS will support anything. Doesn't matter what was said before.
Similarly if a future Democratic congress is able to codify Roe v. Wade the srotum suckers on this court will point to Dobbs and say that it's a state's right, not the Federal government's. It's a heads I win tails you lose decision.
and what then, if a future democratic congress and president overturns the ban and replaces it with a statute guaranteeing abortion rights? what legal gymnastics do the federalist five (assuming all are alive and well and still on the bench) employ to overturn it?
There is the Partial-Birth Abortion Ban Act of 2003 which banned a particular kind of abortion procedure that was rarely used. It appears to use the Commerce Clause in its text. While the current Supreme Court probably wants limit the reach of the Commerce Clause, it would not surprise me if they allowed Congress to ban all abortions this way.
According to Wikipedia this act only applies to abortions "in or affecting interstate or foreign commerce". Of course the definition of what does affect that commerce can be stretched considerably.
Never thought I would be a fan of bringing back nullification, but it may be needed.
Susan Collins is concerned! And very, very disappointed!
“I feel misled,” Susan Collins told the New York Times.
Chalk it up to inexperience.
Lol!
She's a fucking dolt.
Nah. Quayle was doltish, as was Palin. John N. Kennedy & Susan Collins just play dolts on teevee.
It's time for a constitutional amendment enshrining a right to privacy and self-determination (something like Canada's right to security of the person). Would th3e GQP oppose this too?
Of course they would. If somehow it managed to get adopted, they would use it against vaccine mandates, though. Should be rolled up together with a retry on the ERA.
Kevin - You may be right about a national ban, but a much more significant threat could be state laws that criminalize assisting anyone to get an abortion. In a podcast today by Preet Bharara and Joyce Vance (a former US Attorney in Alabama), Vance suggested that it would be simple it would be for Alabama to craft a law making it a crime to conspire to assist in getting an abortion. If the conspirators were out of state (as would be the case for most of the companies you listed), they could still be charged.
Corporations or doctors might never be dragged to Alabama for trial, but it sure would have a chilling effect.
Yes, I agree completely with that assessment. Any single red state could easily enact such laws and could extradite anyone involved in such a “conspiracy” such as people who write for or edit medical journals, medical schools who teach anything about the reproductive system, or even Uber drivers who take women to the airport to travel to a place where abortions are technically legal.
This would not be a huge reach. Under existing conspiracy theory, any nexus between the blue state defendant and people or activities within the red state that have been criminalized would certainly be enough to justify extradition even if the putative defendant’s actions were completely legal in the place where he performed them.
I think if you polled criminal law practitioners and scholars probably at least 95% would disagree with Kevin about this.
Could blue states create a law that such a thing would be a conspiracy to kidnap their citizens and demand extradition of anyone who attempted it?
Bearing in mind that we’re in totally uncharted waters, my assumption would be no because (1) extradition is a normal and completely legal process. There have been instances where a court or a governor rejected an extradition for reasons other than a failure to observe the formalities but that’s always been rare and rarely litigated. And since it is a legal and constitutionally recognized process, the requesting state’s demand could not be the basis for a criminal statute.
(2) there’s also a difference between criminalizing a normal constitutional process and sweeping up out-of-state or marginally involved people into a criminal conspiracy to break a duly passed law in the requesting state, assuming that some of the conspirators are in that state, that’s where a pin actual crime is being done and the fact that some of the indicted defendants live in another state would be no impediment to their extradition and prosecution.
This would be true even if what they were doing is entirely legal in the sending jurisdiction. Example would be defendants in Nevada who are participating in an illegal gambling conspiracy in California.
The further reach, for which Dred Scott is the main precedent is the prosecution of individuals for activities undertaken entirely within the territory of a state where these activities are completely legal (either because the prosecution has somehow gained physical custody of the prospective defendants or seeks to do so via extradition).
Long winded answer, sorry. Short answer is no because the requesting state isn’t try to “kidnap” anyone but instead would be using (or abusing) a legitimate and totally legal process.
I remember when antiabortion groups considered Dred Scott the worst Supremes decision of all-time.
But I also forgot Poland. So what do I know?
I don't believe a state can charge someone with a crime if the act was committed in another state, and was legal in the state in which it was committed. The Full Faith and Credit clause would prohibit it. Otherwise states do have a requirement to extradite someone who committed a crime in a different state, even if it wasn't a crime where he was currently staying, and the Federal courts can enforce that requirement.
If states outlawing abortion start to make an issue of this, there will be a lot of pressure on governors to defy the courts. There may also be attempts by private parties to prevent extradition. I had a comment in a prior thread about attempts to enforce the Fugitive Slave Act; there was widespread defiance and threats against anyone attempting to enforce it. The same kind of actions may occur in this case. It could turn ugly.
There’s a number of examples of something close to this being approved by the courts. These are mostly cases involving bookmaking and laying off bets with offshore bookies whose actions are legal where they are based. If the defendants are genuinely part of the conspiracy and enough of the crime took place in the prosecuting jurisdiction, it’s probably going to be possible to charge them as co-conspirators.
Similarly, an easier case would be if you have a conspiracy to assassinate the mayor of Chicago and for some peculiar reason not everyone involved in the conspiracy is in Chicago. Maybe some of the conspirators are in Florida and their activities of for example, for example furnishing or selling firearms are technically legal in Florida. If there is enough evidence to demonstrate that they were in fact participating in this conspiracy they can be charged in Illinois.
I misunderstood in that case, I'd thought they were saying a doctor providing an abortion, in a blue state, for someone from a red state could be charged and extradited to the blue state, as being part of the conspiracy that offended that states' law.
No, I think you’re reading it correctly. That was my interpretation as well. The difference between the exterritorial jurisdiction which I previously discussed is that here the state is arguing that if people within the red state are in any way helping a woman to obtain an abortion or abortion drugs or (arguably) information about reproductive rights generally that’s a crime. If it’s more than one person it’s a conspiracy.
The logical conclusion under federal conspiracy cases is that if there’s a sufficient amount of the crime taking place in, for our purposes, the red state than everyone in the conspiracy is subject to prosecution there. That would include people who performed overt acts in other jurisdictions, including the actual abortion.
I think referencing Dred Scott was close to the mark, it sounds increasingly like slavery.
The key for our purposes is that the Fugitive Slave Act overrode the sovereignty of free states and forced them to participate in slavery. Here, the blue states sovereignty is being infringed to the extent that the threat of Californians being sued or criminally prosecuted in a red state like Texas. And that’s the analogy I’m trying to conceptualize but I’m struggling to do so. But I think working on this now will pay dividends later if it becomes necessary to organize to take legal and political action.
What recourse is there for abuse of the extradition law?
Why does their making it a crime take precedence over it not being a crime elsewhere?
As far as I’m aware, there’s no recourse. The fact that it’s not a crime in California doesn’t mean that you’re necessarily safe anywhere except California. If it’s a crime in the red states and that state somehow gets custody of you, there’s absolutely no doubt that you’re going to get charged.
The key thing is that all of the formalities for criminal liability are being observed.
Is it then the case that if alcohol were illegal in my state and I go to another state and have a beer I can be charged when I return home?
Just saw your other reply on this point.
I read of cases in Kansas where Cops would have checkpoints not far from the Colorado border and nab folks returning from Pot vacations. I can't remember how the court cases turned out.
That’s the question. Traditionally, all criminal law theorists of whom I’m aware would say no because the crime didn’t take place on the soil of the prosecuting sovereign (exception for treason which has no such requirement). That’s probably the furthest reach that’s being contemplated.
In the texts or case law searches the typical keywords would be “sovereignty” “territoriality” and “comity”.
Is this not in conflict with the woman having an abortion in California?
Correct me if I'm wrong, but assassinating the mayor of Chicago is also a crime in Florida. In fact even Florida courts could prosecute your putative conspirator for committing a crime under Florida law. The conspiracy would also be a Federal crime as well. So your example is not comparable.
The kind of situation we're talking about is if a woman living in Texas drove to California to have an abortion performed by a doctor in Los Angeles. The doctor committed no crime in Texas and the Texas courts would have no jurisdiction.
That’s a fair point since the seller/provider of the gun would be a co-conspirator if he knew the gun would be used to kill the mayor and nothing if he didn’t. So I stand corrected.
The interstate gambling cases and some narcotics cases are better (if slightly ambiguous) examples. What I’m trying to say is that if you’re involved in a conspiracy that arguably violates the law in the red state, the fact that your part of the conspiracy is legal where you are probably doesn’t insulate you from being prosecuted in the red state.
I don't know the details of the cases you're talking about. Gambling across state lines would normally be a Federal matter.
Not necessarily. There could, for example, be too few participants. But also, states can and do bring gambling cases. Let’s think about a hypothetical gambling organization that operates numerous books in California. It also has several people who go to casinos in Las Vegas where they place large completely legal bets to hedge the positions which its books have taken. My argument would be that the Vegas layoff men would be subject to prosecution in California for their role in the gambling conspiracy even though they were in Nevada and everything they did was legal there.
Another hypothetical would be money laundering. A criminal conspiracy based in California uses a specialist to move large amounts of cash to the Cayman Islands where we will assume for the sake of simplicity that money laundering is not a crime). The specialist gives the suitcases full of money to a resident of the Cayman Islands who deposits it in a bank, knowing that’s it’s drug money. Everything he does is legal in that place. Assume he is somehow in the custody of California—has he committed a crime in California? I would say yes because his participation in the California-based conspiracy violates California law and subjects him to prosecution there.
Seems very analogous to a “conspiracy” to promote abortion or perform an abortion in a place where doing so is legal but subjects that person to prosecution in the red states even though he’s never been physically present there.
Is the distinction though that in the putative case where money laundering is legal in the Caymans the activity in California producing the money to be laundered would still be illegal in the Caymans, where the activity in the red state to bring the person to the blue state for the abortion would not be illegal in that blue state?
No, but I think your analysis is helping to sharpen the question. I’m trying to leave the sources of the illegal money aside and focusing on the idea of whether you can have something be a crime in one place but legal in another place. And the question is whether doing something completely legal can still draw someone into a criminal conspiracy in the place where a portion of the crime takes place and the activity is illegal.
For abortion, let’s say there’s a law that says facilitating an abortion is a felony. In the red state there’s a clinic staffed by doctors who give referrals to hospitals in California and there’s an organization that raises money to enable women patients of the clinic to travel travel to California hospitals to have abortions. This activity is presumably illegal in the red state.
Now we ask what is the risk to the doctors and hospitals in California. Performing the abortion is legal in California. But assuming that the hospital in the red state is cooperating with the one in California, would this mean that the California doctors and hospital administrators have entered into a conspiracy with their red state counterparts to violate the red state abortion law? I’m not sure but I think the answer is yes.
This thread is running out of space and I made an answer in a new comment at the bottom.
in your example, there was a crime actually committed in california, abetted by persons in nevada. in the case of a texas woman traveling to cali to have an abortion, there was no violation of texas law that occurred on texas soil, so how could texas have jurisdiction?
You’re describing the traditional criminal law theory which is based on things like comity and sovereignty. It’s the reason why one can patronize a prostitute at the Mustang Ranch and return to California without fear of being prosecuted.
There’s a lot that we’re grappling with and maybe I’m blurring it together. I think there’s three different but somewhat related ways to criminalize a woman’s traveling from Texas to California to have an abortion:
1. One possibility is to make it a crime to travel to another state or country for purposes of having an abortion. This means that the crime is traveling for the purpose of the abortion, which means that a crime is committed in Texas even if the abortion is legal where it’s performed.
2. Texas could make it a crime to facilitate having an abortion. This would reach everyone from the people physically present in Texas (from the clinic making the referral to the people buying airline tickets to the Uber driver taking the woman to the airport if he knows why she’s going) to the people outside the state who are ”conspiring”;with Texans to break Texas laws. Looking at some of the analogies we’ve been working with, I’d say maybe.
3. The easiest way is for Texas to simply say that it’s a crime to facilitate an abortion, perform an abortion, or have an abortion. Texas would be asserting universal extraterritorial jurisdiction similar to what the federal government does regarding killings of Americans abroad. The only question would be whether if Texas demanded extradition of doctors,etc the sending US state would be required to honor that request. I don’t know but I actually think maybe, yes.
In Ronny D's Florida, assassinating the mayor of Chicago is just taking our country back.
Shoot the officers from the invading state and then refuse to indict the shooters in the invaded state. That will give them pause.
Come on, Kevin. There are lots of things conservatives “can’t” do, like install a president who lost the election, but try to do anyway.
The law is a fiction and means whatever those in power say it means. The Supreme Court can decide that a fetus is a person, then they can decide that an abortion deprives that person of life, so is banned by the 14th amendment.
The Supreme court has not decided that a fetus is a person. They have explicitly left that, and essentially any other decisions about abortion, up to "the people". But whether the people in the nation as a whole can decide, or whether it must be left up to those in individual states is the question asked by Kevin's post.
Just to be clear: there are a vast number of federal criminal laws that reach conduct way beyond the limitations described by Kevin. The issue isn’t whether a “federal interest” is at stake but rather whether jurisdiction can be bootstrapped by adding an element to the crime which permits federal jurisdiction.
The number of crimes and their scope is vast. The FBI once made its numbers of off arresting car thieves. Bank robbery is a federal crime (if you robbed a federally insured bank). Possession of narcotics is a federal crime. Carjacking can be prosecuted federally. Flight to avoid a state prosecution is a federal crime. Title 18 itself is overflowing with federal crimes that don’t implicate the kind of core interests described by Kevin.
I don’t think it would be difficult to craft either a restriction or a protection of reproductive rights, if either party wanted to do so.
And the restriction would be constitutional and the protection unconstitutional. At least according to *this* bunch of bottom feeders.
The restrictions would be legal because of the way that the law can be written. Arguably, the same basis would allow Congress to both protect reproductive choices and strip the court of jurisdiction over cases related to reproductive rights. That’s what the Democrats should be promising to get done if they keep congress.
Yes and it would seem that traveling out of state to get an abortion is "interstate" commerce", so Congress could pass a law to criminalize anyone involved in such a process, presumably including abortion providers. In this way abortion could be completely denied to inhabitants of red states, though it would not affect inhabitants of blue states - unless they did travel to another state.
Yes, I think you are correct. A federal law would almost certainly be constitutional (objectively speaking and not having to do with this illegitimate court).
Something I’m seeing being spoken of as an anti-circumvention mechanism is criminalizing the act of traveling out of state to have an abortion. I’m not sure if that’s on firmer ground since it seems to be an indirect way of asserting universal jurisdiction. If a state can assert universal jurisdiction it probably doesn’t need this klutzy work around; if universal jurisdiction isn’t okay,criminalizing travel probably isn’t either.
How does this work if a woman goes on vacation to a state where abortion is a crime, returns home and finds her hook up there resulted in pregnancy and uses drugs to abort the pregnancy. Is she guilty of a crime in the state she became impregnated in and could she be extradited to the state she became impregnated.
How are other interstate issues handled? If a 15 year old goes to Mississippi from California and marries a 25 year old and she becomes pregnant, can the 25 year old be extradited to California for unlawful sex with a minor? If they move to California does California have to accept their marriage?
For the moment, the thing that the red states are proposing to criminalize is obtaining abortion drugs, having an abortion or perhaps facilitating an abortion. So where the woman becomes pregnant is not a consideration. Just where she is having the abortion or perhaps where she starts out from when she gets the abortion. Essentially, ideas by which red states can prevent women from circumventing the abortion ban by traveling to a place where it’s legal (rather than as an attempt to impose red state values universally)
I think the new goal is to classify the unborn as people for the purposes of federal civil rights laws. That would provide the necessary legal basis to move against state actors in places where it is still legal.
I think Kevin is wrong on this one. It will play out as this:
Various states will make laws about Abortion. Some will seek to ban providers in other states from providing them to their residents. As we’ve seen, some are preventing even traveling through there state to another state to get an abortion (this is almost certainly unconstitutional, though with the Court who knows).
This impacts interstate commerce, which congress can regulate. They regulate it by banning it or by penalizing the states that offer it by reducing federal funds, etc.
It will take conservative control of the White House and both houses of congress, but that will happen again at some point.
As I wrote below, I don't think Republicans will create a filibuster carve-out for abortion legislation. But if they were sufficiently determined, they wouldn't have to rely on the interstate commerce clause. The 14th amendment explicitly grants Congress the power to enforce its provisions, ERGO a right wing Congress could ban abortion as an exercise in guaranteeing equal protection of the laws to in utero Americans. Sound exoctic? Doesn't matter what it sounds like to you or me, only to five or six right wingers in black robes.
Kevin's right, but he got the reason wrong. The GOP cannot pass an abortion law because such a ban wouldn't find 60 votes in the Senate. Republicans aren't stupid enough to create a filibuster carve-out. At least that's my take. (At least if we still operate under democratic norms, including competitive elections; if elections no longer matter, then sure, all bets are off).
Kevin's also right that this court will strike down national abortion rights legislation, in the off chance they can muster the votes to do this.
Republicans will amend the Mann Act.
The original Mann Act made it a felony to engage in interstate transport of "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose." Jack Johnson, the first African-American to become world heavyweight champion, was prosecuted under the Mann Act.
According to Wikipedia, the Mann Act "was amended by Congress in 1978 and again in 1986 to limit its application to transport for the purpose of prostitution or other illegal sexual acts." It won't take much to amend it again to encompass the transport of women for the purpose of obtaining an abortion.
Just too bad you can't fit a gun into a pregnant woman, then the world would be safe.
Or, actually, isn't this ruling like fitting a gun into a pregnant woman?
It's an entirely contrived solution to an imaginary problem, born in bullshit and intended to create the most harm possible.
There is no need for legislation. The Supreme Court can strike down any state laws permitting abortion on the grounds an unborn child is a person for the purposes of the constitution from the moment of conception.
"Justice Alito has made his decision; now let him enforce it." If there's no Federal legislation there's no Federal jurisdiction. States don't need to take any positive action to allow abortions; they just have to refuse to prosecute.
bingo
No, Alito's opinion in Dobbs explicitly leaves such decisions up to the "the people" - whether it is the people in the states or as a whole (Congress) is the question in this post. The Republican claim all along was that the Court in Roe v Wade improperly took such decisions upon itself.
Of course the Court could change its mind again since it doesn't respect stare decisis.
Well of course it will change its mind, once the issue is before it for decision, just as it will decide that the logic of Dobbs compels it to overturn Obergefell once the matter has been properly argued before it. Alito's dicta are meaningless.
I'm going to say what others won't/can't:
Six of nine current justices are Catholic. They can lie, cheat and steal however they see fit. A quick confession, a couple of Hail Marys', pay the plate, and it's right back to sinning. Apparently Chief Justice Roberts is our sole, conservative ethicist.
We're all aware of the world's oldest profession. Hucksterism has to be a close second.
In addition to acting like an immature, adolescent thug, Kavanaugh clearly lied during his confirmation hearings. About the drinking and legal age. Now he's lied again.
And Clarence 'catholic' Thomas? There's a nearby plate to pay for Ginni and you too!
Neil 'settled law' Gorsuch? We'll take a check.
If it's anything which Catholic Patriarchy excels, it's stripping their fellow humans of their rights.
Conservatism didn't overturn Roe. Religious ideology did. Something our Founders expressly separated from our democracy.
Over the decades, I've been told you can't malign religion. It's bad form. Maybe it's time we start.
Keep justifying the indefensible. Keep making it all about what you want and what you believe. If it costs someone else their rights, so be it. It's all about you!
Good to see Kevin Drum out on his own.
Ken D
AZ
Many people say that Neil Gorsuch is Episcopalian, but this doesn't seem to be true. He was raised Catholic and had never indicated a change of religious affiliation that we know of. He attends Episcopalian churches since his English born wife is an Anglican. The Episcopalians very reasonably allow any self professed Christian to receive communion and participate in the service.
Neil has never told anyone that we know of that he is an Episcopalian. He is a Roman Catholic. There are 7 Roman Catholics on the court. It has been many years since there was a Protestant of any sort on the court.
People consider the court to be more diverse now than it was in 1963 because there are a couple of women and a black man (?) on the court. But they all have spent their whole adult lives in the law and aiming for the federal bench. All have gotten their law degrees from Harvard or Yale. None have been in the military. None have held elective office. None have held cabinet posts or other important Federal or State offices. Even the liberal ones are just mutant versions of the now standard federal judge clone.
Certainly the Republican justices are by far the worse, but none of the current justices are as in touch with reality as the justices of 1963.
(I pick 1963 for comparison as that was before Thurgood Marshall was appointed and the court was lily white. Move the date to include Justice Marshall and my arguments are even stronger. Have any of the current justices been involved in pro-civil rights litigation?)
Doesn't the 9th amendment say that any rights not enumerated belong to the people? Could Congress say that the right of privacy is covered under the 9th amendment and as such, pass a law protecting abortion, contraception, same sex relationships? IANAL, of course, and would be interested in feedback.
I am also not a lawyer but that sounds like a good idea. And Congress can enact any statute it wants, I think, provided the votes can be found.
I doubt the current court would let it stand, though.
“ This is mere logic, of course, and conservatives on the Supreme Court can just ignore it if they want.”
…. Really this should have been the entire text of your post, mr. Drum, as sort of a retort to your headline.
“Still, there are limits, even for these folks.”
…. And noooow, you’ve blown it. What is wrong with you people!? Are we all goldfish who forget that we’ve been here before every time we swim around the bowl? I’ve been hearing ever since Reagan’s election that “ohhhh they’d never actually do what they promise to do.” (Some black and gay folks have used that logic to justify being Republicans.) And then we forget that we said that before when the next level of con promises is made.
Let me simplify : THERE ARE NO LIMITS. THERE ARE NO RULES. JOHN ROBERTS IS THE LIBERAL FRINGE OF THE CONS. You saw the coup attempt at the capitol, I assume? Do you believe there is any part of the constitution they respect aside from the unlimited right to bang-bang toys? These folks don’t even believe in the basic humanity of half the population.
Take action accordingly. Wishful thinking is not action.
Totally agree.
Do you believe there is any part of the constitution they respect aside from the unlimited right to bang-bang toys?
Which of course isn't a right.
Excellent post.
Stage 1: Denial
Stage 2: Anger
Stage 4: Bargaining <—— YOU ARE HERE
smart guys like Kevin and Mike Pesca seem to think everything’s just normal and it won’t go any further.
Mike Pesca? Thinks everything is normal and won't get worse? Say what?
Adam Serwer in The Atlantic:
“The core conservative belief about the culture war is that there is a Real America that is conservative, and a usurper America that is liberal. This, not historical research, not legal analysis, is the prime means of constitutional interpretation for its (the Supremes) current majority. …. (The public) should take the right-wing justices’ vow that other constitutional rights are safe for precisely what it is worth—which is to say, absolutely nothing.“
This is not the belief of intellectual conservatives, it is the belief of the white lower-income "base". Actually the belief is not in conservatism, it is in white Christian supremacy. When white supremacy was protected by Democrats in the South, the people concerned were liberal economically. This is why the New Deal succeeded and why Huey Long was the most popular politician in the South.
Brett Kavanaugh, during oral arguments in December:
"The Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue to the people of the states or perhaps Congress to resolve in the democratic process."
You can parse that different ways. It was part of an exchange with the Mississippi solicitor general, but it suggests Kavanaugh was open to the idea that Congress can legislate on the abortion issue.
With respect Kevin, Conservatives do NOT care about *Laws* .
Frank Wilhoit: “Conservatism consists of exactly one proposition …There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.”
First, impeach those who lied to members of Congress to get on SCOTUS. People that brazen wouldn't qualify for security clearance.
Kevin, like too many dems, fails to realize this is a religious Crusade for the right. They are determined to make us all live under their fake Christian rules and laws. I live among there. They are clear.
Unless we realize that, we are doomed.
Isn't that hanging on 'if the doctors in California are cooperating with the red state hospital'?
If they're not but they're just accepting the patient in the state are they outside the extradition statute?
I'm trying to focus on ways of avoiding the extradition of secondary parties, but at the same time I'm concerned about the state citizenship of the victim opens her up to further victimization. Why is her national citizenship not involved in this?
In reply to Mitch.
Then let me explain how this will go. Fascist congress passes federal abortion ban. Democrats sue. The case makes its way to the SC where the same six rule that it now is part of federal purview. And there you have it.
Shorter Kevin: 'But dogs can't play basketball.'
Six justices are "originalists" in only three ways: they are unabashedly racist, sexist, & elitist. They care nothing for justice.
Ironic that the southern states rescinding women's right & suppressing votes of poor & minority voters probably won't have the gall to overturn the Loving ruling, so Clarence & Ginni can remain in wedded bliss.
I had forgotten a salient historical fact until rereading it in "My life on the road:" the Catholic church has not only allowed abortion in the past - it regulated it.
Nothing but change is certain.
https://pubmed.ncbi.nlm.nih.gov/12340403/
Now I just have to research how they thought they could determine the gender...
Yeah, I was wondering about that myself.
The church's stated belief that a male fetus develops more quickly than a female one bears no relationship that I know of to the other timeframe for determining that it's too late for an abortion- that is, following the "quickening" when movement is detected.
But it was surprising to see how many antiabortion sites claimed that the Catholic position has always been opposition for any reason, at all times. And of course - not that Christians in general base their beliefs on the old testament- it obviously was not unknown in "biblical" times.
We have a national drinking age of 21 because of the 1984 National Minimum Drinking Age Act that mandates states to enforce the minimum drinking age of 21 if they are to receive highway funds. Surely a "National Access to Reproductive Health Care Act of 2023" could require states to permit abortions up to ~22 weeks in order to receive Medicare/Medicaid funds or some other appropriate stash of federal money.
Actually yes it can be done this way, but rather than medicare and medicaid lets make it transportation and law enforcement funding and/or other non medical funding. Lets not harm the poor folk who need healthcare in order to give healthcare. It could probably be written in such a way that all non medical funding would be cut off to the state if an abortion ban prior to 15 or 22 weeks was enacted.
They would also have to specifically remove the ability of the federal and state courts to rule on constitutionality. Otherwise the Supremes would just negate it.
Click baity headline. Of course conservatives could pass a law banning abortion. The issue is whether it would survive the courts. So the post is actually about the courts and whether they will observe limits, precedent, and logic. Need I say more?