quote:
Not even remotely. SCOTUS said that abortion is not a Constitutional right.

It did not rule upon Congressional authority to legislate the issue.

Ok- not entire basis - but . . .

1. They spent about 10 pages talking about the history of state legislation on the topic, and then at the end (citing Heller) called it a “health and welfare” rule. These under commerce clause - have traditionally been held to fall outside the commerce clause power to regulate. I think this means that per SCOTUS abortion is NOT a federal issue upon which congress can regulate. (See Also: Lopez)

2. Even if Dobbs had never been decided -Can you think of any other instance where a constitutional amendment recognizing the right of the people to be “free from” government intervention has created a congressional power to regulate in that area? I can’t.

3. I think Post-Dobbs if Congress tried to require abortions nationwide, they may run into some due process concerns bc Dobbs discussed the competing interests btwn “potential life” and the woman’s life. It did not declare when life began. SCOTUS may be in the mood to declare life begins at conception - and the concerns of feminists related to the balancing of them, did not address the concern of protecting the unborn. In other words, if someone in Louisiana sued to eliminate the law, they would have a good chance of winning.

4. SlowFlo corrected me on the Pub Accommodations law - I was relying on my law school recollection from legit sitting in Con Law II, and there was debate in Congress about whether to use the 14A itself, but then they apparently rolled with commerce clause instead. Either way, I concede and agree with him that the commerce clause should not apply to abortions, and thus Congress has no authority to act. Abortions are a state issue related to health and welfare.

5. In sum, I think that if Congress passed a nation wide law making abortion legal nationwide, it would be unconstitutional bc there’s no Art I enumerated power to do it.

This post was edited on 6/25/22 at 8:56 am

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Posted by SlowFlowPro

Simple Solutions to Complex Probs

Member since Jan 2004

425065 posts

Posted on 6/25/22 at 8:59 am to Wednesday

quote:
These under commerce clause - have traditionally been held to fall outside the commerce clause power to regulate.

Citation? Lopez was about guns and the VAW act case was about violence against women. When has USSC ruled that healthcare falls outside of IC?

quote:
Even if Dobbs had never been decided -Can you think of any other instance where a constitutional amendment recognizing the right of the people to be “free from” government intervention has created a congressional power to regulate in that area?

What does an amendment have to do with anything? That question is incomprehensible given the actual discussion/subject at hand.

quote:
SCOTUS may be in the mood to declare life begins at conception

This is LITERALLY the type of judicial decision-making the court invalidated yesterday. The USSC declared federal courts are out of the business of making these types of decisions.

quote:
SlowFlo corrected me on the Pub Accommodations law - I was relying on my law school recollection from legit sitting in Con Law II, and there was debate in Congress about whether to use the 14A itself, but then they apparently rolled with commerce clause instead.

They did both.