4 ms·

An amendment seems ideal, but wouldn't a regular federal law also get the job done? They could even strengthen it like the Federal Reserve Act: "The right to a

An amendment seems ideal, but wouldn't a regular federal law also get the job done? They could even strengthen it like the Federal Reserve Act: "The right to amend, alter, or repeal this Act is hereby expressly reserved."

Clubber 4y ago
The federal government derives much of it's power over the states using a controversial interpretation of the commerce clause: To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; https://www.law.cornell.edu/wex/commerce_clause https://www.law.cornell.edu/wex/commerce_clause Abortion tends to be single state centric, meaning the person getting the abortion and the abortion clinic are in the same state. Because of this, the federal government couldn't pass a law that only affects intrastate commerce. At least that's my understanding of it. FWIW, qualified immunity was also an immunity created from whole cloth by the Supreme Court. Apparently interpreting new "laws" like this was popular from the court in the 1960s and 1970s. Much of today's police brutality and lack of accountability stems from this decision. https://en.wikipedia.org/wiki/Qualified_immunity https://en.wikipedia.org/wiki/Qualified_immunity
- robonerd 4y ago
  > The federal government derives much of it's power over the states using a controversial interpretation of the commerce clause Given that expansive interpretations of the commerce clause seems to be the status quo, doesn't that suggest that a federal abortion law is possible? It should be easy for lawyers and politicians to find some tortured meaning of interstate commerce that includes a woman getting an abortion in her own state. They seem to do this sort of thing all the time.
  - Clubber 4y ago
    Most of the time they just bribe the states. That's how the drinking age moving from 18 to 21 occurred. The federal government offered highway fund money (or threatened to remove it) if states increased the drinking age from 18 to 21. https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_Act https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_...
    - mcguire 4y ago
      Everybody wants federal highway funding. "If you want Medicare funding, you will..." could easily backfire, given that conservatives are not fond of that program either.
      - Clubber 4y ago
        A lot of state governors refused to take Medicare funding for the ACA and it was a very unpopular move. I think it's mainly the conservative politicians that don't like it because they have to put it in their budget. Conservative citizens, by and large, particularly older ones like it, but it's part of the conservative "package." Social security is along the same lines. As soon as a conservative politician starts talking about cutting social security, his or her days are numbered.
- dinosaurdynasty 4y ago
  The federal government can always withhold funding to states that don't implement their laws the way they want them too (which is how the federal drinking age is enforced... states that were to set it to less than 21 don't get funding for freeways/roads/etc)
- acover 4y ago
  Doesn't the commerce clause cover basically everything? You can't grow wheat to feed your own horses because it affects interstate commerce.
  - MockObject 4y ago
    You can't even grow your own weed, inasmuch as it affects the prices on an interstate black market. https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich
    - jimmaswell 4y ago
      Which is absolute hogwash and FDR's most unfortunate mistake. It lead us to the war on drugs and a barrage of unconstitutional gun laws that should have all been outside the feds' perview.
- woodruffw 4y ago
  I think that oversells it. The current interpretation of the commerce clause is not particularly controversial in contemporary American politics (both dominant political parties are "big Federal government" parties; they just disagree on how to apply the USG's heft.) > Abortion tends to be single state centric, meaning the person getting the abortion and the abortion clinic are in the same state. Because of this, the federal government couldn't pass a law that only affects intrastate commerce. It's not this straightforward. One of the initial challenges to the 1964 CRA was that intrastate racial discrimination fell outside of the purview of the Federal government; SCOTUS has consistently determined that state acts may not restrict rights where interstate activity is likely (e.g. motor lodges, economic activities near state borders, etc.). On net, I think the 9th Amendment provides perfectly sufficient cover for a right to abortion, and that it would be reasonable to interpret the nonenumeration clause in a similar manner to the commerce clause (i.e., permitting federal law where required to protect rights that individual states might wish to infringe). But that's a parallel justification.
  - Clubber 4y ago
    > The current interpretation of the commerce clause is not particularly controversial in contemporary American politics (both dominant political parties are "big Federal government" parties; they just disagree on how to apply the USG's heft.) It's not controversial to the layer of government to which derives power from it, certainly. I think politicians in states have issues with it when it's convenient. >I think the 9th Amendment provides perfectly sufficient cover for a right to abortion, and that it would be reasonable to interpret the nonenumeration clause in a similar manner to the commerce clause (i.e., permitting federal law where required to protect rights that individual states might wish to infringe). But that's a parallel justification. I think it will until states start banning abortion, which is their right (assuming Roe is overturned). I don't think the federal government will have power to override the decision of the states. It would be nice to see a strong interpretation for the 9th amendment come into action though. It might finally end moral crusades like the drug war.
- rat87 4y ago
  A very broad application of the commerce clause isn't that controversial, it's also pretty obvious/logical since basically everything effects interstate commerce

Clubber 4y ago

The federal government derives much of it's power over the states using a controversial interpretation of the commerce clause: To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; https://www.law.cornell.edu/wex/commerce_clause https://www.law.cornell.edu/wex/commerce_clause Abortion tends to be single state centric, meaning the person getting the abortion and the abortion clinic are in the same state. Because of this, the federal government couldn't pass a law that only affects intrastate commerce. At least that's my understanding of it. FWIW, qualified immunity was also an immunity created from whole cloth by the Supreme Court. Apparently interpreting new "laws" like this was popular from the court in the 1960s and 1970s. Much of today's police brutality and lack of accountability stems from this decision. https://en.wikipedia.org/wiki/Qualified_immunity https://en.wikipedia.org/wiki/Qualified_immunity

robonerd 4y ago
> The federal government derives much of it's power over the states using a controversial interpretation of the commerce clause Given that expansive interpretations of the commerce clause seems to be the status quo, doesn't that suggest that a federal abortion law is possible? It should be easy for lawyers and politicians to find some tortured meaning of interstate commerce that includes a woman getting an abortion in her own state. They seem to do this sort of thing all the time.
- Clubber 4y ago
  Most of the time they just bribe the states. That's how the drinking age moving from 18 to 21 occurred. The federal government offered highway fund money (or threatened to remove it) if states increased the drinking age from 18 to 21. https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_Act https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_...
  - mcguire 4y ago
    Everybody wants federal highway funding. "If you want Medicare funding, you will..." could easily backfire, given that conservatives are not fond of that program either.
    - Clubber 4y ago
      A lot of state governors refused to take Medicare funding for the ACA and it was a very unpopular move. I think it's mainly the conservative politicians that don't like it because they have to put it in their budget. Conservative citizens, by and large, particularly older ones like it, but it's part of the conservative "package." Social security is along the same lines. As soon as a conservative politician starts talking about cutting social security, his or her days are numbered.
dinosaurdynasty 4y ago
The federal government can always withhold funding to states that don't implement their laws the way they want them too (which is how the federal drinking age is enforced... states that were to set it to less than 21 don't get funding for freeways/roads/etc)
acover 4y ago
Doesn't the commerce clause cover basically everything? You can't grow wheat to feed your own horses because it affects interstate commerce.
- MockObject 4y ago
  You can't even grow your own weed, inasmuch as it affects the prices on an interstate black market. https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich
  - jimmaswell 4y ago
    Which is absolute hogwash and FDR's most unfortunate mistake. It lead us to the war on drugs and a barrage of unconstitutional gun laws that should have all been outside the feds' perview.
woodruffw 4y ago
I think that oversells it. The current interpretation of the commerce clause is not particularly controversial in contemporary American politics (both dominant political parties are "big Federal government" parties; they just disagree on how to apply the USG's heft.) > Abortion tends to be single state centric, meaning the person getting the abortion and the abortion clinic are in the same state. Because of this, the federal government couldn't pass a law that only affects intrastate commerce. It's not this straightforward. One of the initial challenges to the 1964 CRA was that intrastate racial discrimination fell outside of the purview of the Federal government; SCOTUS has consistently determined that state acts may not restrict rights where interstate activity is likely (e.g. motor lodges, economic activities near state borders, etc.). On net, I think the 9th Amendment provides perfectly sufficient cover for a right to abortion, and that it would be reasonable to interpret the nonenumeration clause in a similar manner to the commerce clause (i.e., permitting federal law where required to protect rights that individual states might wish to infringe). But that's a parallel justification.
- Clubber 4y ago
  > The current interpretation of the commerce clause is not particularly controversial in contemporary American politics (both dominant political parties are "big Federal government" parties; they just disagree on how to apply the USG's heft.) It's not controversial to the layer of government to which derives power from it, certainly. I think politicians in states have issues with it when it's convenient. >I think the 9th Amendment provides perfectly sufficient cover for a right to abortion, and that it would be reasonable to interpret the nonenumeration clause in a similar manner to the commerce clause (i.e., permitting federal law where required to protect rights that individual states might wish to infringe). But that's a parallel justification. I think it will until states start banning abortion, which is their right (assuming Roe is overturned). I don't think the federal government will have power to override the decision of the states. It would be nice to see a strong interpretation for the 9th amendment come into action though. It might finally end moral crusades like the drug war.
rat87 4y ago
A very broad application of the commerce clause isn't that controversial, it's also pretty obvious/logical since basically everything effects interstate commerce