Write a federal statute codifying Roe v. Wade including the specific constitutional authority for such statute.
Law school exam question . . . .
- Thread starter CO. Hoosier
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Congress is empowered to enact laws deemed “necessary and proper” for the execution of the powers given to any part of the government under the Constitution. Abortion is legal.
Okay. So there can be no federal prosecution for abortion under this law. How does this law apply to state government?
The Necessary and Proper Clause enabling federal action for enforcement applies only to the powers specifically enumerated in the Constitution. Abortion is not specifically enumerated as a power granted to the federal government by the states or the people. Abortion is no longer within the jurisdiction of the federal government but controlled by the states.
The tetse fly is indigenous to Africa. Sometimes it may land upon an elephant. The bones of the elephant are......
How does it work in Colorado with marijuana? Legal by state law, illegal by federal law, if I’m not mistaken. Can the feds step in to Colorado and prosecute somebody for possession of marijuana or does it have to be a cross the border kind of situation to make it a federal case?
Likely the 9th amendment. Of course IANAL.
If Congress decides to make a law I’d want it to read something like this:
Abortion is legal, for any reason, for a minimum of 12 weeks and a maximum of 22 weeks. The state legislatures may decide where to lay that restriction. This restriction will not apply in cases of incest, rape, or where the mother’s life is in danger.
I think we should begin a campaign for The states to force a constitutional convention. And then televise it.
If Congress decides to make a law I’d want it to read something like this:
Abortion is legal, for any reason, for a minimum of 12 weeks and a maximum of 22 weeks. The state legislatures may decide where to lay that restriction. This restriction will not apply in cases of incest, rape, or where the mother’s life is in danger.
I think we should begin a campaign for The states to force a constitutional convention. And then televise it.
I don’t know how it ends, but it starts “Congress finds that abortion has an impact on commerce in and among and between the States….”
Televise a late term abortion....
Show it on airport televisions.
Be sure your kids watch, then explain your support for what they saw...
I don’t think congress has the authority to pass a law telling a state legislature how to define a crime. The only way this works is for congress to tie it to Medicaid funding. ”Any state which accepts Medicaid funds must allow abortions as follows . . . .”
With very few exceptions, this is how the feds enforce any national policy on state government, make it a condition of accepting federal funds. But this has limits as Trump found out when he tried to end sanctuary city policies by withholding funds.
So another way of spelling that is extortion, right?
And it also appears that it's only ok for SOME to use extortion. Is that what correct?
I guess we’d be treading new waters. Also wouldn’t congress be decriminalizing abortion by setting a bar?
I don't think it's possible. The only authority I think they could claim would be the Commerce Clause, and that might have barely slipped by fifty years ago, but I can't imagine the current court going for it. It would lose 6-3.
I think they would do it like the did with making the drinking age 21 where they tied highway dollars to it.
In this case, they’d tie health care funding to some base standard of abortion access.
Tbis is another situation of the dog having caught the car. I’m very interested to see how Rs handle this going forward this term.
In this case, they’d tie health care funding to some base standard of abortion access.
Tbis is another situation of the dog having caught the car. I’m very interested to see how Rs handle this going forward this term.
I agree. This seems obvious to me. Why do you think many smart Dems are saying congress can codify R v W?
Those Dems are seeking to establish, in the post Roe discussion (or ranting perhaps), a ray of hope and a bevy of slogans for demonstrations to try to drive mid term election turnout and fundraising. Their pollsters must think they gain electorally - a little, a lot, or false hope - to keep the game going through November. With close to 70 House seats in play, it appears that the issues weigh extremely heavily against Dems. They are desperate for any thing they can use to divert attention from the mess they're in. They hope this might be something to invigorate the left. The very sparse data I know of says they gain very little. They have a very long and narrow way to move the needle to avoid a wave election against them.
Yes. The Dems use Dobbs to leverage funds and votes for the midterms. The Dems political message is now solely based upon the huckster ‘s notion that there is a sucker born every minute. With a supportive media and social media they could have some success.
This forces them to put their cards on the table as well. They operate off of polls like Pew conducted where the question is superficial.
About six-in-ten Americans say abortion should be legal in all or most cases
A majority of U.S. adults say abortion should be legal in all or most cases; 37% think abortion should be illegal in all or most cases.
www.pewresearch.org
The problem being that the question has a whole lot more ambiguity when you start to dig into what "all or most cases" means.
AP-NORC poll: Most say restrict abortion after 1st trimester
A new poll shows a solid majority of Americans believe most abortions should be legal in the first three months of a woman’s pregnancy, but most say the procedure should usually be illegal in the second and third trimesters.
apnews.com
The majority of people think it should be banned after 15 weeks. You can also find polls where people think that when you dig in more that a heartbeat and likelihood of fetal pain also slide people's opinion away from the "all or most cases" idea.
Dropping Roe moves the Overton window. Now Democrat's also have to defend their position on abortion and the position they hold is currently one of the most extreme in the world. Removing Roe was just the start of all this. Things will not change overnight, but now there is the real opportunity to start shifting attitudes and asking questions like, "Why do we need this procedure that is rarely performed for life of mother, rape, incest, or babies viability" when so many actual birth control methods are available to the public?" There are other questions that come into play as well...before the other side of the aisle from me never had to truly defend the position, "That's the law so suck it." Now they do. I think people who generally feel that they support some abortion will come to find the reasoning for "abortion uber alles" to be wanting.
Somebody mentioned this elsewhere but the Dems will probably package this with healthcare rights.
I don't doubt at all the conviction of your position but the four situations you noted aren't the majority position. The majority position is abortion being legal for some period of time. What that period of time is seems to be left to the states. Republicans may face headwinds if they approach abortion from the position you've noted.
Dems will be able to hammer them from two sides. Healthcare and Womens' rights.
It's done all the time. 55 speed limit to highway funds, Title IX to education funds, etc. Do it legislatively rather than through regulation and the courts will be fine with it.
What was the federal method of incentivizing state "red flag laws" in the new bi-partisan gun statute?
The new federal gun statute got preempted this week by Dobbs and Bruen, and I haven't found a good description of it (except a couple accounts said the new federal statute had provisions to "incentivize" states to enforce red flag laws).
What position did I note in the post? I said that the conversation now goes back to each side to make and it is no longer a matter of "you can't restrict almost anything" and instead becomes a conversation that is going to have a whole host of opinions. Up to this point tye discussion has always revolved around all or nothing because that is what people (erroneously) thought overturning Roe would mean. Now the discussion is going to be whether it should be legal, if it is legal for how long and for what reasons. The current Democrat and leftist position is basically abortion on demand. And I don't care what any left leaning people say about their own thoughts on it are, up to this point the left party in this country has fought any and all attempts to restrict abortion at all, so whether your personal position is that, it doesn't matter. The Party that represents you has that as their position.
So as you agreed with my assertion in your post, Democrat's and abortion supporters are also going to have to explain that position when the majority of the country wants to restrict to the first trimester at the very least. It took 50 years to get Roe overturned. I think abortion should be banned in all but a few instances. The fight to do that begins with the consensus that the government has a right to impose restrictions on the procedure (like almost every other developed nation does) and once that paradigm shift has occurred, then other arguments are likely to make headway with the populace.
I have seen the polling. People start getting really squeamish about abortion when you get down to details. Particularly details that blow up the whole "clump of cells" argument (like heartbeats and fetal pain).
Edit to add: Roe was overturned on a case challenging the right of a state to restrict abortion to a timeframe that the majority believes it should be restricted to. The all or nothing approach from the abortion extremists led to this. Mississippi was compromising to be in line with the Aloha's of the world and that wasn't acceptable. Now with Roe gone, those same folks have to make the argument why.
No, not new waters, really.
Doling federal money is how the U.S. got the states to pass uniform state speed limits (uniform for a little while, anyway) and uniform DUI laws. Many worthwhile programs have happened only because the federal government used this method to get the states to do worthwhile things that individual states couldn't accomplish on their own.
Highway funding grants since about 1960 have required the states to spend the money on highways that met certain standards as to width of lanes and rights-of-way and height of overpasses etc. The reason was that the federal government saw a need for better highways to allow military vehicles to travel swiftly around the country in case of attack.
The result was the National System of Defense and Interstate Highways pushed by Pres. Eisenhower.
Why would Old Man Eisenhower care? Because in 1919 he was assigned to drive a convoy from D.C. to San Francisco and report on the problems he encountered (like no highway maps, inaccurate maps, non-existent bridges etc.). He never forgot about the condition of state highway roadways that he encountered.
1919 Transcontinental Motor Convoy | Eisenhower Presidential Library
www.eisenhowerlibrary.gov
Was there ever a proposal to limit abortion after 24 weeks (second trimester) while still allowing for emergency circumstances? That's what Roe originally laid out.
The Mississippi law outlawed abortions after 15 weeks, far less than the usual 21-22 weeks that are used as the testing point for determining any fetal abnormalities. I'd be surprised if that was a time frame supported by the majority, BICBW.
Solid majority say to restrict after first trimester. The Mississippi law would have allowed 2 weeks into the second. That is what I am getting at, there is a whole bunch of room to argue now that did not exist before.
You may be right, but there is another poster on this board that thinks the Dobbs decision won't matter in this fall's elections, because (he thinks) the women voters primarily care only about economic issues. Who knows?
But, if there will be fewer abortions going forward, who will have to pay for the rearing, medical treatment and education of the resulting children?
The states have shown no signs that they will pay for it themselves, so pity the poor ex-husband who gets to see his high school daughter about once every 2-3 weeks but his ex-wife gives him no power to discipline her and finds out after prom night that his daughter is pregnant and his state thinks he should support his grandchild, too.
(Not imaginary at all. In several states, adults have a legal duty to support their parents. So, why not the grandchildren too, when the states realize how much it will cost?)
You wrote, "With close to 70 House seats in play, it appears that the issues weigh extremely heavily against Dems."
Maybe not anymore!
Everyone knows how McConnell singlehandedly confirmed Gorsuch to the Supreme Court (singlehandedly rejecting Garland). The purely political game of this 80-year-old fossil from a minor state is the primary reason Dobbs was adopted.
This issue did not exist until a couple days ago. You guys may well be surprised in a couple months..
I haven’t read the Bill, but reporting suggests incentives mean funding. Federal strings attached to funding is a typical way to cajole states to act.
Calling McConnell an 80 year old fossil from a minor state reveals a lot about how he took your ass to the cleaners for decades.
Underestimate him at your peril.
You failed to know your enemy.
Sorry. I thought your quote about explaining the rare procedure required outside rape, incest and health of the mother/baby was a position which would limit abortion to only those circumstances. Apologies if I misread that.
I noted my position elsewhere. Abortion should be legal for a minimum of 12 weeks and a max of 22. States can decide on their own where to put the line. Beyond 22 would need to be only due to a certain restrictive set of criteria, most notably rape, incest, health of mother.
Ok but the majority of the country wants abortion to be legal. The devil is in the details. We'll never agree on what those details will be I suspect. What Roe did was provide a framework. Sure, it was faulty as hell and a house of cards (obviously) but it was a framework. That's now gone. I agree with Alito. Congress should do something to provide that framework. The problem is, how? Agree with others it will probably be wrapped up in the Commerce clause.
Well ok. I live in Hamilton Co. The part representing me are republicans by and large. I don't grouse at that. I didn't vote for Victoria Spartz but she's not a nutjob.
The Dems' position is in direct contrast to the Republican position. This actually should be a very interesting time over the next few years especially if red states push the envelope in the way Thomas envisions. Again, my position is abortion should be legal and restricted.
I'm not an extremist and neither are the majority in the Dem party. The problem with most of our politics is that every issues has become so polarized that "if you give them an inch they'll take a mile" sits in the back of everyone's minds. Abortion, however, is an issue where I think the "middle" of the country (both Pub and Dem) would be fine with a framework being devised by Congress in which the states could operate at varying levels, providing them an opportunity to allow citizens to still have a say in how legal abortion should operate within their state. However, the extremist position in this country, at this time in our history, is for abortion to be illegal or completely non-elective.
You selectively edited a few of my comments that misrepresents my point. Particularly here:
Now the discussion is going to be whether it should be legal
That was a sentence fragment you pulled out that represented a list of items the discussion would be about. Maybe my tuen of phrase was inarticulate, but the rest of that sentence was indicating that the abortion discussion with Roe/Casey in place has always been either we have it or we don't. Whenever a state (like Mississippi) tried to restrict it in any way (yet still allow it in certain circumstances and/or within a given timeframe) they were always immediately challenged in court and basically told that Roe/Casey meant no restrictions.
For much of the rest, you are doing what I said not to do. Conflating your opinion with the way the Democrat Party pushes their views on abortion. You may think that there should be a limit somewhere in the first or second trimester, but the Democrat Party is expressly against that in word and deed up to this point.
Which is why I say that now it gets interesting because the activists in the Democrat Party are as out of step with public opinion as any anti abortion individuals are as well.
I actually agree with you here. Yes, the Dems have to get in line with public opinion on this. I just think their position at least allows for discussion. The hard anti-abortion position does not.
As I noted, if you give either side an inch they'll take a mile. It's like 2A cases. No compromise. Straight to the mat every time.
Now it get interesting. The anti-abortion side is out of step with public opinion. The pro-choice side (at least the extreme of it) is out of step with public opinion. Gonna have to be a compromise somewhere. I've staked out my position. You've staked out yours. Which one do you think will win more votes over time?
Depends on the state. In Indiana, probably closer to mine. In California, probably closer to Roe/Casey era. Someplace like Pennsylvania or Colorado, probably closer to you.
yes
yep. I had the same thought. And Medicaid funding would be a huge hammer. But with the potential sacrificial lambs being some of the most vulnerable Americans
Question for the lawyers.
Reading Alito's opinion it feels like there is real vitriol present between the majority and minority on the court.
For example:
Emphasis mine of course. Do opinions generally rag on the dissent in a manner such as this? Do they find time to try and guess at the motivations of those writing or joining the dissent.
Also, Alito seems bent on noting that Griswold wouldn't be overturned b/c abortion could destroy "potential life". However, it's not that far of a jump to contraception from abortion.
Reading Alito's opinion it feels like there is real vitriol present between the majority and minority on the court.
For example:
Emphasis mine of course. Do opinions generally rag on the dissent in a manner such as this? Do they find time to try and guess at the motivations of those writing or joining the dissent.
Also, Alito seems bent on noting that Griswold wouldn't be overturned b/c abortion could destroy "potential life". However, it's not that far of a jump to contraception from abortion.
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