- My Forums
- Tiger Rant
- LSU Recruiting
- SEC Rant
- Saints Talk
- Pelicans Talk
- More Sports Board
- Fantasy Sports
- Golf Board
- Soccer Board
- O-T Lounge
- Tech Board
- Home/Garden Board
- Outdoor Board
- Health/Fitness Board
- Movie/TV Board
- Book Board
- Music Board
- Political Talk
- Money Talk
- Fark Board
- Gaming Board
- Travel Board
- Food/Drink Board
- Ticket Exchange
- TD Help Board
Customize My Forums- View All Forums
- Show Left Links
- Topic Sort Options
- Trending Topics
- Recent Topics
- Active Topics
Started By
Message
re: Can’t congress pass a law making abortion legal nationwide?
Posted on 6/25/22 at 8:54 am to AggieHank86
Posted on 6/25/22 at 8:54 am to AggieHank86
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
1
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.
quote:
I concede and agree with him that the commerce clause should not apply to abortions,
You concede but disagree with me, actually.
And it raises questions.
quote:
Abortions are a state issue related to health and welfare.
Is it an economic activity?
Are the instruments used in that economic activity part of interstate commerce?
Posted on 6/25/22 at 9:05 am to Dawgfanman
The problem is that the term “abortion” covers ANY procedure done to terminate a pregnancy, viable or not. Termination of a normal healthy pregnancy ends up being the same as termination of a ectopic pregnancy, pregnancy outside the uterus, and miscarriages that won’t come out. The right is happy because now the birth control termination is completely off the table, but it leaves the question of other procedures. Do we put mothers’ lives at risk because even though some of these issues are life threatening the fall under the abortion umbrella term? Or do we define exactly what was wanting to be illegal and fix the definition once and for all?
Posted on 6/25/22 at 9:22 am to SlowFlowPro
Why you so angry? I think elastic commerce clause is the Devil. We agree. If this were a basis for Congress to pass a law making abortion legal nationwide, Congress’s statute (in either direction- permitting or denying abortions) would be unconstitutional.
The holding in Dobbs was based almost entirely about history of individual states regulating abortions. It found that the issue should be decided by the individual states. The only federal substantive authority involved was an invented right with no basis in Federal Law- or history of it.
I do not believe that an abortion procedure is economic activity between two states despite that the instruments to do it are sold in interstate commerce. Therefore, I don’t think Congress has authority to regulate abortions under the commerce clause.
I don’t believe states can ban, for example, abortion tourism. Maybe Congress could give $$ for abortion trips to Planned Parenthood, but I don’t know how they get around other prevailing Fed law preventing Gvt $$$ to be used to fund abortions (their idiocy about funding Planned Parenthood aside)
I guess Congress could permit or require the selling of abortion equipment to Louisiana, or Medicare laws could require hospitals to purchase- bc apparently ObamaCare is cool with the commerce clause and it can force ppl to buy things. I frankly don’t know enough about the mechanics of the procedure to know whether there are any instruments exclusive to performing abortions as opposed to other legit obstetric procedures. Regardless, Louisiana can criminalize the use of these instruments for abortions - so who cares?
I think abortion is an issue like Lopez and VAW Act in that these are all regulations regarding - public safety/welfare. They are not the SAME subject matter. But if the Fed Gvt can’t pass specific gun regulations or regulations regarding domestic violence, I’m not precisely sure how they can pass abortion laws.
I’m not saying that Congress won’t try to regulate abortions, or at least make noise about it - but I think that it exceeds their authority because it’s a public safety / health and welfare issue. And if they try to do it, they need to know Their audience - ie that Alito is in it.
The holding in Dobbs was based almost entirely about history of individual states regulating abortions. It found that the issue should be decided by the individual states. The only federal substantive authority involved was an invented right with no basis in Federal Law- or history of it.
quote:
Is it an economic activity? Are the instruments used in that economic activity part of interstate commerce?
I do not believe that an abortion procedure is economic activity between two states despite that the instruments to do it are sold in interstate commerce. Therefore, I don’t think Congress has authority to regulate abortions under the commerce clause.
I don’t believe states can ban, for example, abortion tourism. Maybe Congress could give $$ for abortion trips to Planned Parenthood, but I don’t know how they get around other prevailing Fed law preventing Gvt $$$ to be used to fund abortions (their idiocy about funding Planned Parenthood aside)
I guess Congress could permit or require the selling of abortion equipment to Louisiana, or Medicare laws could require hospitals to purchase- bc apparently ObamaCare is cool with the commerce clause and it can force ppl to buy things. I frankly don’t know enough about the mechanics of the procedure to know whether there are any instruments exclusive to performing abortions as opposed to other legit obstetric procedures. Regardless, Louisiana can criminalize the use of these instruments for abortions - so who cares?
I think abortion is an issue like Lopez and VAW Act in that these are all regulations regarding - public safety/welfare. They are not the SAME subject matter. But if the Fed Gvt can’t pass specific gun regulations or regulations regarding domestic violence, I’m not precisely sure how they can pass abortion laws.
I’m not saying that Congress won’t try to regulate abortions, or at least make noise about it - but I think that it exceeds their authority because it’s a public safety / health and welfare issue. And if they try to do it, they need to know Their audience - ie that Alito is in it.
Posted on 6/25/22 at 9:46 am to Wednesday
quote:
Why you so angry?
I'm literally not angry at all.
Don't try to conflate me deconstructing your bad legal argument into some sort of emotional response.
quote:
It found that the issue should be decided by the individual states.
No. It found that the issue should be decided by legislatures and not courts. Practically, today abortion will be decided by the states but that only exists because Congress hasn't enacted a law (yet). This thread presupposes Congress does so.
Quote me which part of the ruling specifically precludes Congress from enacting a law.
I can 100% show you where a concurrence specifically authorizes Congress to act.
quote:
I think abortion is an issue like Lopez and VAW Act in that these are all regulations regarding - public safety/welfare.
How is paying for a service not economic activity? Or the purchase of the equipment via interstate commerce? Or the salaries paid to staff?
None of those economic behaviors exist with Lopez or VAW.
quote:
I’m not precisely sure how they can pass abortion laws.
Abortion is clearly an economic act that affects interstate commerce, on various levels.
Congress regulates all sorts of services performed via ICC. Why would abortion be different?
You can even get into Dormant Commerce Clause interpretations that could attack states for various regulations on abortions.
Posted on 6/25/22 at 10:05 am to SlowFlowPro
quote:
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?
This presupposes that abortion is Healthcare.
Is euthanasia healthcare?
Posted on 6/25/22 at 10:08 am to udtiger
quote:
This presupposes that abortion is Healthcare.
Wednesday used the terms "health and welfare".
I've called abortion an economic activity.
quote:
Is euthanasia healthcare?
With current ICC interpretations, I imagine Congress could regulate euthanasia and make it a crime.
Posted on 6/25/22 at 10:14 am to SlowFlowPro
quote:
How is paying for a service not economic activity? Or the purchase of the equipment via interstate commerce? Or the salaries paid to staff?
I can buy marijuana for recreational use in Colorado. I cannot in Louisiana.
The commerce clause doesn’t permit congress to regulate all economic activity, only interstate economic activity.
The state can prohibit economic activity within its borders - especially when that economic activity relates to the health and welfare of the citizens of the individual states.
Posted on 6/25/22 at 10:20 am to Wednesday
quote:Healthcare?
The state can prohibit economic activity within its borders - especially when that economic activity relates to the health and welfare of the citizens of the individual states
Hence, California's fuel and ICV regs/laws.
Posted on 6/25/22 at 10:31 am to Wednesday
quote:
I can buy marijuana for recreational use in Colorado. I cannot in Louisiana.
It's illegal, federally, in both states.
quote:
The commerce clause doesn’t permit congress to regulate all economic activity, only interstate economic activity.
Read Heart of Atlanta and Wickard again.
Posted on 6/25/22 at 10:37 am to Wednesday
quote:
The commerce clause doesn’t permit congress to regulate all economic activity, only interstate economic activity.
My sweet summer child, I do adore you.
Posted on 6/25/22 at 10:48 am to SlowFlowPro
quote:
Read Heart of Atlanta and Wickard again.
quote:
Wickard
Effectively dead with Sebelius (necessary and proper/IC not constitutional basis for compelling a private contract) as well as Lopez and Morrison.
That's not to say that ICC is dead, but Wickard was it's apex and there's been retrenchment since.
Posted on 6/25/22 at 10:55 am to udtiger
quote:
Effectively dead with Sebelius (necessary and proper/IC not constitutional basis for compelling a private contract) as well as Lopez and Morrison.
a. I was responding to Wed's attempt to make an "intrastate commerce" argument that hasn't been the law since Wickard (reinforced by Heart of Atlanta)
b. Sebelius has nothing to do with this. Sebelius's ruling on IC would only apply if the hypothetical federal law compelled doctors to perform abortions. Clearly that would be illegal, but the problem is that's not what's being discussed in this thread.
Posted on 6/25/22 at 2:47 pm to SlowFlowPro
quote:
It’s illegal, federally, in both states [sale of Mary Jane as controlled substance]
Yes. The federal government prohibits the sale in interstate commerce, so it’s illegal federally in all states when sold in interstate commerce.
It is illegal under Louisiana Law for me to buy it from my next door neighbor for recreational use.
It is also illegal under federal law for me to buy it from a Vendor in Denver over the internet and the have it shipped to my house in Baton Rouge, Louisiana.
The reason the federal “ban” isn’t enforceable in Colorado, is that federal law can’t ban legal economic activity In Colorado. Much like Federal Law Can’t ban abortions in Colorado. Or legalize them in Louisiana.
We agree. We both think that the way that the commerce clause is interpreted is wrong. I’m not doubting that Congress has used it as a means for federal overreach, and that certain laws congress passed under this court sanctioned abuse of authority remain on the books. Whatever the decision may be on various applications of the commerce clause - doesn’t mean the interpretation is the right one.
The Lopez and Violence against women act cases, noted a jurisprudential trend towards narrowing the interpretation of the freaking commerce clause. The court has become MORE conservative since those cases were decided.
If Congress tried to use its commerce clause power to regulate abortion as an economic activity within the states that banned it; there is no doubt in my mind that the US Gvt will find itself sued by the state of Louisiana or Mississippi or Texas or Missouri or Utah or Alabama or probably all of them.
As I read Dobbs - the current majority of the Court does not interpret abortion as economic activity that is subject to regulation by congress. I
could be wrong. But it did not address its application.
However, there is no indication whatever in the opinion that EITHER Federal Ban on abortion or a Federal Legalization of abortion would work. The only laws discussed in the decision were laws passed by state legislatures, indicating to me that if pressed the Court would find that the activity is health and welfare issue traditionally reserved to state governments.
And while we’re at it . . . Unless there’s a state law prohibiting it, abort away even after your kid pops out and call it abortion, and you’re good; let God deal with you. Congress doesn’t have the power to create rights. In the absence of a constitutional pronouncement of illegality by a state or Federal Gvt, you can do whatever TF you want.
And PS I’ll re-read the Mart case.
This post was edited on 6/25/22 at 2:48 pm
Posted on 6/25/22 at 3:29 pm to TheHarahanian
quote:
They’ve had the option to amend the Constitution and make abortion an actual Constitutional right
They have never had that chance because they have never had the consensus that they pretended they had.
Posted on 6/25/22 at 3:31 pm to anc
quote:
Congress could pass a law tomorrow and it would be perfectly legal.
It would be unconstitutional.
Posted on 6/25/22 at 3:33 pm to SlowFlowPro
quote:
If there is a federal power to regulate racism via ICC, then I can see that there is a federal power to regulate an act that involves many more steps in the ICC chain.
If the left were dumb enough to do that this court may just neuter the Commerce Clause abuse we’ve seen as well.
Wednesday is right.
Posted on 6/25/22 at 3:38 pm to Dawgfanman
Sure...needs to meet Constitutional standard
Posted on 6/25/22 at 3:40 pm to SlowFlowPro
quote:
Is it an economic activity?
Are the instruments used in that economic activity part of interstate commerce?
The plates, knives and forks were good enough to force local diners to allow blacks to sit at the lunch counter.
Posted on 6/25/22 at 3:40 pm to Dawgfanman
They tried. The Democrats are now infanticide or bust, so they will never get anything passed.
There was no place in the Dem party for pro-lifers, now you have to agree to abortion until mom is in labor to be accepted.
They are the party of the crazies.
There was no place in the Dem party for pro-lifers, now you have to agree to abortion until mom is in labor to be accepted.
They are the party of the crazies.
Page 6 of 7
Popular
Back to top
Follow TigerDroppings for LSU Football News