That's a question I asked yesterday, because I was dissatisfied with the question Emerson polling had asked — "Should Congress pass a law legalizing the right to abortion?" There's such a wide range of things Congress could do, notably protect a short period of entitlement to abortion.
I don't expect Congress to take advantage of the opportunity to come together and do something practical and helpful, and obviously my little unscientific poll shows an overwhelming preference for Congress to do nothing at all, but I just wanted to suggest that it would be sensible for Congress to create a statutory right to abortion in the first 10 weeks, leaving the rest of the legislative choice to the states.
I'd like to see some proper polling of this question. I understand why Democrats in Congress are concentrating on the "viability" line that the Court had identified. But I wish they would consider an earlier point, in order to get a modest time-limited right in place to meet the real needs of women in states, like mine, who now have no right to abortion.
पोस्ट्स
९६ टिप्पण्या:
The first issue is does Congress have jurisdiction to regulate the practice of medicine? The only way is via the commerce clause. IMO, Congress has no jurisdiction. What say you, Professor Althouse?
Now that we’ve established that there is no constitutional right to an abortion, what is the theory under which congress could pass such a law?
"I don't expect Congress to take advantage of the opportunity to come together and do something practical and helpful..."
Would this be the congress that's polling higher than biden or lower than him? Because it seems to change hourly depending on whether or not grandpa felonyfingers opens his happen.
Also, they've never done something practical or helpful since they declared war on Japan. It's tradition.
Lack of convenience is a feature, not a bug.
It would not be sensible for Congress to legislate in favor of nationwide abortion rights. Such a measure would not survive constitutional scrutiny and would, moreover, make abortion once again a concern of the federal government. There is no reasonable possibility of achieving a national consensus on what abortion policy should be. Leave it to the states.
@David Begley
You know the answer, and it is obvious under current doctrine. Yes, the Court could overturn Heart of Atlanta. Until then, there's Commerce Power.
You know the answer, and it is obvious under current doctrine. Yes, the Court could overturn Heart of Atlanta. Until then, there's Commerce Power.
For those of us who aren’t retired law professors, what’s the obvious basis? Where else has Congress decreed something “shall be legal”? Wouldn’t they have to tie it to some funding aspect, and wouldn’t states be free to just opt out of the funding?
oh! Oh! OH!! i know! i know!!!
Congress should pass a law, noting that it's not up to them; and that STATES should get on it!
Ann: as a law prof you should know that what the court did is say it is up to the states. Note that even in this most recent gun control spasm congress only created incentives for states because it is also not in their wheelhouse.
We've had 49 years of babies being killed for their mother's convenience, and two generations raised in a culture where life is cheap. I say we give babies a reprieve while their mothers figure out how to use birth control. Let's not hurry to pass any laws making abortion legal. Let's make sure everyone understands what "rare" means first. No more lies about abortion being used as birth control. Recreational sex shouldn't come with a death sentence for a baby.
Ask if the cutoff ought to be when it appears on a sonogram to be cute. The anthropomorphism cutoff.
Is there ANYTHING that Commerce Power CAN'T do?
I mean, if it legalizes Murder,, then
Could it BAN murder?
Could it REQUIRE people to be married and have kids? I mean, children's formula crosses state lines?
When a person votes for an official to go to Washington.. That official MUST cross state lines to get there; Doesn't THAT mean that a person's voting choice could(SHOULD!) controlled.. to regulate Commerce??
Correct me if I'm wrong, but didn't the Supreme Court just say that this was an issue for the individual states to decide?
And as a practical matter wouldn't enough Republicans take that position that there would be no chance for a Federal law to be passed?
what is the theory under which congress could pass such a law
Wire hanger control. There are probably more wire hangers in the streets, than there are guns. Guns being an impractical tool to end a pregnancy. 🫃 In fact, there are so many wire hangers, wire hangers buy back would be like attempting to drain the ocean.
Safe and legal abortions, so the theory goes, would keep the deadly and dangerous wire hanger in the closet where it belongs.
As I recall, the original decision as penned by Blackmun was that in the first trimester abortions were not restricted. In the second trimester, states could regulate. Third trimester abortions were not permitted. In subsequent years, the slippery slope revealed it's ugly head.
10 weeks is a bad bargain on the road from denial to acceptance. The right to abortion has been repressed, but isn’t dead.
Althouse,
I just did a quick cliff-notes skim of Heart of Atlanta, and the phrase "interstate travel" is all over it. What's missing in your statement, then, is which following case it was that extended the authority of Commerce Clause from interstate travel to "everything".
Serious question: do we really know with precision what week we're in? Without relying on testimony from the "birthing (or not) person."
"Until then there's Commerce power" this should actually read "until then there's the illegitimated expansion of power under the commerce clause allowed by Wikard v Fillmore and Heart of Atlanta."
You know the answer, and it is obvious under current doctrine. Yes, the Court could overturn Heart of Atlanta. Until then, there's Commerce Power.
Given the strong trend presented this decision season, I do wonder if the fact that the abortion 'commerce' is happening entirely within the state itself as a point of argument against the law would get a friendlier reception now.
Is the sense from the Dobbs decision that abortion regulation is a power for the states, or is it agnostic on that point... more of a 'anyone can regulate it as long as it is not the judicial branch' kind of a thing?
I may reread the opinion looking for that specifically as it may inform how the court would respond to a challenge to a congressional law.
A "guarantee" would seem to assume taxpayer funding, which I don't think is gonna fly. But 10-12 weeks is good with me, as long as I'm not paying for it.
"I just did a quick cliff-notes skim of Heart of Atlanta, and the phrase "interstate travel" is all over it. What's missing in your statement, then, is which following case it was that extended the authority of Commerce Clause from interstate travel to "everything"."
The key case is Katzenbach v McClung — decided along with Heart of Atlanta, involving a restaurant that wasn't as interstate in its location as the motel called Heart of Atlanta.
You can see these cases discussed in Lopez (the Gun-Free School Zones case):
"First, we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce. Examples include the regulation of intrastate coal mining; Hodel, supra, intrastate extortionate credit transactions, Perez, supra, restaurants utilizing substantial interstate supplies, McClung, supra, inns and hotels catering to interstate guests, Heart of Atlanta Motel, supra, and production and consumption of home grown wheat, Wickard v. Filburn, 317 U.S. 111 (1942). These examples are by no means exhaustive, but the pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained."
Abortion providing is a commercial activity and it has a substantial effect on interstate commerce. That's doctrine that Lopez preserved.
It boggles my mind that States have ignored this for so long. They've only had 50 years to pass laws in line with Roe, to amend their state constitutions to enshrine what they must feel is a god-given right to abortion, but they didn't.
So Mississippi has a law under which abortions are legal, but WISCONSIN doesn't?
"Ann: as a law prof you should know that what the court did is say it is up to the states."
The court removed the right that trumped all legislation, at the state or federal level. Things are left to the states unless Congress decides to step in, though it can only do that if it has an enumerated power. To pass the legislation I'm suggesting, it would use the Commerce Power. The existing doctrine would support this use.
But obviously the Court knows how to change the doctrine, and I think there's a good chance the Court in its current configuration would throw out the existing doctrine. Thomas has indicated a desire to do that.
"Ann: as a law prof you should know that what the court did is say it is up to the states."
First of all, I hate to be addressed like that: "as a law prof you should know." You're asserting what you think is true. That phrase reads like an effort to con me. It NEVER works.
Second, the court did not go into whether Congress has an adequate power to legislate if it wants. That's an important question of law that will have to be resolved when and if it actually comes up. The Court can't give it to the states. The Court would need to determine that Congress lacks the power to preempt state law. That didn't happen.
Well one wonders then why the legislative genius Speaker Pelosi did not offer a modest Federal bill to affirm access to abortion in the first ten weeks. Why keep waving the WHPA around as if that 39-weeks+ bill had a chance?
Quote the language in Dobbs that you think comes closest to reserving the question to the states and excluding federal law.
I'm very surprised that only 8% support a total federal ban and almost three times that number want a legal right to abortion through at least the first ten weeks. I thought I was reading a different blog.
The Kavanaugh concurrence directly refutes that idea that it's exclusively a state issue.
After today’s decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans. That issue will be resolved by the people and their representatives in the democratic process in the States or Congress.
AA:"Quote the language in Dobbs that you think comes closest to reserving the question to the states .."
How about we quote the Amendment Number 10: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Kavanaugh's concurrence indicates abortion can be regulated through federal law
"The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress"
The use of the commerce clause, to me seems like absolute abuse. By that theory, every single activity can be placed under a commerce heading since almost nothing occurs that does not include the crossing of state lines. It is the magic clause that allows the government to bypass every single restriction that the founders intended to place on it. That doctrine needs to be nuked into oblivion. The only time it should be invoked is if there is substantial interstate activity that can only be remedied by federal action because of how one state can abuse its monopoly on some vital resource to the detriment of other stated or the nation as a whole. The home grown whet ruling was a major abuse.
Tell me where I am getting this wrong.
Using it to justify abortion is an abuse. I suppose if one wanted to try and minimize the about, one could say that only abortions where someone crossed state lines could be protected by the government and thus they can give you your 10 week rule for all abortions where the woman crossed into another state to get it. Then we could set up a whole industry for abortion tourism. It could be called: AirAbort, and use the AirB&B network and infrastructure. Or maybe even simpler. Have the Aborters without borders concept where mobile teams of aborters go city by city with big abortmobiles to perform the procedure as along as the doctors don't go to their home state. They could get federal licenses to practice to avoid state regulations. This would NOT bean abuse of the commerce clause, No sir. Not at all.
Quick question, why isn't the commerce clause invoked to prevent state licensing so that professionals can perform their functions in other states? Why is insurance restricted state by state?
Another thought. Relying on the commerce clause might work only for a little while since that is probably vulnerable to the court's revisit given the level of abuse that has resulted. IT would be Dobbs all over again.
So the rationale under the Commerce Clause would be:
1. Congress can regulate interstate commerce.
2. Women traveling out of state to get abortions are engaged in interstate commerce.
3. Those women are putting themselves at unnecessary risk by their travel. Why, they might crash and hurt the baby.
Oh. Wait…
I guess I missed your poll. I am surprised at the results. I would have thought a right to abort at 15 ish weeks would do much better. I really thought there is what most people believe?
I never thought any state would restrict to life of mother, incest, rape. I hope the states redo the laws.
I think Ann Althouse is correct. Wickard v. Filburn is a core precedent and can’t be overruled.
@Prof. Althouse. Thank you for your patient explications. Saved me tons of time ineptly typing from an iPad.
Knowledgeable fair-minded people certainly can criticize the current expansive state of commerce clause jurisprudence (me among them), but until SCOTUS overturns some of the precedents you cited Congressional power to nationally regulate abortion is not in serious doubt. I also agree that it is conceivable that this Court could be just the Court to start trimming back on Congress’s commerce power, but I think it is very unlikely. Unlike Roe, which was obviously clearly wrong, the definitional scope of “interstate commerce” simply isn’t obvious. Accordingly, I don’t think even most of the Justices uncomfortable with today’s generous commerce clause jurisprudence would be comfortable overcoming the stare decisis hurdles necessary for a truly major recalibration.
While I can see congress passing legislation that would protect interstate travel to obtain an abortion being upheld, the previous smack-down by SCOTUS of then Senator Biden's Violence Against Women Act on both Commerce Clause and 14th A, sec 5 grounds would seem like the relevant precedent.
Especially since a wide ranging federal statute legalizing abortion would entail the federal government claiming preemption of state police powers regulating the practice of medicine within its borders.
You need a two-part poll. 2nd part is assuming abortion regulation is up to the states, then pick the time frame you believe should be legal in your state. Thanks for poll, Ann. I hate how most media don't realize the nuanced positions most people have.
Explain to me how requiring someone to cross state lines to get a product or service constitutes a substantial restriction on interstate commerce.
Keep in mind I'm an engineer, not a lawyer. Citing precedent doesn't really answer my question.
First Congress has to pass a law, and to do that, the Democrats have to give up on public funding for all abortions and give up abortions after, at a minimum, 20 weeks gestation. Will they offer up such a bill- I say no they will not. I don't see the Democrats in Congress focusing on the "viability line".
This was EXACTLY my point yesterday.
Where is 'kill the kid 3 months later because he cries too much'?
Mystery in sex and conception? Women and men lack dignity and agency? Human life as progressive commodities?
Viability from baby meets granny, in state, if not in process.
Perhaps an equal right of self-defense under the nominally secular Pro-Choice ethical religion, equitable and inclusive rights for men by Nature, women by Nature, and others by identity, to elect abortion of their "burdens".
A civilized society would discourage the performance of human rites for social, redistributive, clinical, and fair weather causes. Under the Constitution, surgical and medical corruption of healthy tissue and lives by the government and its agents would be regulated and aborted under due process, cruel and unusual punishment, and "our Posterity".
Repealing the Hyde amendment, which limits federal funding for abortion services, would be the logical first step if the Dems were serious about Congressional action responding to Dobbs. They have been trying to accomplish that for years. But even when the Dems had massive majorities in Congress, they couldn’t get it done. And Biden has once again proposed repealing the amendment. So, Pelosi/Schumer, over to you- if you can get Manchin on board. Not likely but stay tuned.
"... a modest time-limited right in place to meet the real needs of women in states, like mine, who now have no right to abortion."
Needs! Oh those real needs! Women need abortions like they need what? Air? Food? Water?
No. They need abortions like they need unsafe sex with unsuitable fathers. Or maybe like they need Joe Biden and his accoutrements: open borders, inflation, food shortages, etc.
Since when was there any "modest" about Democrat demands to kill babies.
There are are diverse precedents for congressional regulation of interstate commerce of clinical cannibalism and trafficking of human parts, it is imperative to secure the right to perform human rites for social, redistributive, clinical, and fair weather causes. However, under the equitable and inclusive doctrine of the established State ethical religion, the right to elect abortion of "burdens" (i.e. babies, infants, granny, etc.) must be guaranteed to women by Nature, but also to men who identify as women, and, in fact, all people... persons. Reconciliation of Roe and Ruth.
(shakes head)
Andy Dufresne: How can you be so obtuse? Is it deliberate?
There is never a "need" to kill another on demand for one's convenience.
@David and Wa St: The Court certainly could find a national abortion law passed by Congress unconstitutional if it wished, but to do so would require overturning multiple precedents. While those precedents have indeed been subject to fair and longstanding criticism, they are not nearly as obviously wrong as Roe, and therefore the stare decisis hurdle would be much tougher. I don’t see it happening.
All you folks appealing to AA specifically as a "law professor."
Well, a law professor does not need to persuade or convince anyone of anything. All she needs to do is proclaim. No explanation required.
Abortion is a commercial activity only because some abortionists are in business and charge money and some states allow them to do it. There is nothing inherently commercial about it. If some states do allow it, then there can be regulation between those states, but Congress cannot compel other states to allow it. That is not regulating interstate commerce.
Meanwhile, what is the argument for saying that killing babies affects interstate commerce?
AA: "But obviously the Court knows how to change the [existing commerce power] doctrine, and I think there's a good chance the Court in its current configuration would throw out the existing doctrine. Thomas has indicated a desire to do that."
I think it is helpful to the discussion that you said this.
I just took a quick look at three opinions. Thomas's concurrence in Lopez; Scalia's concurrence in Gonzales v. Raich; and Thomas's dissent in Gonzales v. Raich.
It is worth reading through these three opinions (or at least the first few paragraphs of each) and then asking yourself if it might not be the time for the commerce power to be reigned in a bit. I could imagine the current court overruling Wickard v. Filburn. And I think they should.
Abortion providing is a commercial activity and it has a substantial effect on interstate commerce. That's doctrine that Lopez preserved.
I am unable to devote sufficient time to read every case and every citation related to this, so I guess I will have to simply be one of many ignorant people who have an opinion and should not bother commenting since my points would be considered worthless.
However, from a man on the street view, I can't see how abortion has a substantial effect on interstate commerce. Maybe I don't understand substantial very well. IS that a legal term that is different than the common use I am familiar with? Does one state's laws on abortion impact the global pricing and supply of abortion?
In the ObamaCare case, the Court was clear that the individual mandate could not be upheld as an exercise of Congress's power under the Commerce Clause, which Roberts said "authorizes Congress to regulate interstate commerce, not to order individuals to engage in it." Nor does it authorize Congress to order states to allow engagement in it.
As Scalia joined by three others also said, "One does not regulate commerce that does not exist by compelling its existence."
David Begley is it can’t be overturned or won’t be overturned. Of course a reversal of Wickard would toss a good bit of federal law. From my point of view that would be a good thing. Unfortunately there is only one Justice Thomas.
I think no federal would be the best option. I don’t think there is a sufficient consensus to justify a national law and passing one would create a tit for tat scenario with the Republican Party. If a consensus is ever to be reached it will be among the states over time.
"After today’s decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans. That issue will be resolved by the people and their representatives in the democratic process in the States or Congress."
That's just a concurrence, but it says what I'm saying.
At most, Congress could use the commerce clause to prohibit interference with people crossing state lines to go to an abortion facility.
"How about we quote the Amendment Number 10: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.""
That's a tautology, the Court has said. It only means that after all of Congress's enumerated powers, whatever is left belongs to the states. The Commerce Power is one of Congress's enumerated powers. To ask what's reserved to the states is the same thing as asking what is given to Congress.
You COULD find more in the 10th Amendment, but you'd have to go against precedent.
Personally, I think the reservation of power to the states ought to inspire some limitation of what can be found in the enumerated powers. But the Court has not interpreted the 10th Amendment that way. Let's see how well the states do legislating post-Roe. I think the better they do, the greater chance that the Court will be motivated to invalidate whatever Congress comes up with (if it comes up with anything).
"Tell me where I am getting this wrong."
You're not dealing with a century of precedent.
Polling is bad when the questions are biased.
"What kind of law should Congress pass to protect unborn children?" might give us some interesting numbers.
Or perhaps, "Should Congress protect abortion rights or the right of the baby to live?"
Anyway, my answer is that Congress should recognize the baby's humanity and protect her right to life. It's up to the states to determine the biological criterion you need to be alive. But it's up to the federal government to make sure that those laws apply to all people in the state in an equal fashion.
So if your state defines human death as cessation of all brain activity, the state shouldn't be allowing elective abortions past that point.
And the power for the federal government to enforce these laws is granted in the 14th amendment.
Abortion providing is a commercial activity and it has a substantial effect on interstate commerce. That's doctrine that Lopez preserved.
The judgment in Lopez was that Congress did NOT have power under the Commerce Clause to enact the law in that case.
"You need a two-part poll. 2nd part is assuming abortion regulation is up to the states, then pick the time frame you believe should be legal in your state."
I'm guessing people would put the line in the same place... but the 66% who took the first option would now have to weigh in. I am thinking of doing this for that reason.
I want to know where people think the line is. But give them time first to look at the pictures and read descriptions of the stages of development. I think this will be surprising to a lot of people.
I just got very distracted looking at little figures of 10-week old fetuses that are sold on Etsy to people who've had miscarriages.
"in the States or Congress" Much turns on what the "or" means. It could be the concurrence saying that (the author of the concurrence believes that) (1) congress has the power along with the states or (2) congress may or may not have the power and we are not deciding that in Dobbs.
I said: ""How about we quote the Amendment Number 10: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Ann responded: "That's a tautology, the Court has said. It only means that after all of Congress's enumerated powers, whatever is left belongs to the states. The Commerce Power is one of Congress's enumerated powers."
OK, what isn't part of the Commerce Power (rhetorical question)? Anything and everything could be construed as part of of Commerce Power. Money changing hands? Commerce Power. Aborting babies? Commerce Power. I do not think that's what the framers intended.
Didn't see the poll- but it's not within the powers of the federal government. Leave it to the states.
I must admit a certain amount of schadenfreude regarding those people who have been hiding behind Roe, knowing that right from the get-go both conservative and liberal commenters agreed that it was poor jurisprudence. For 50 years they have had the opportunity to codify abortion law at the local level and have not made the effort ( Hello WI!). Many states have passed laws allowing abortions and, like them or not, they have immediately replaced Roe. Ultimately WI and the other states lacking "modern" abortion laws will develop statutes that suit their citizens, which is as it should have been the past 50 years.
I suspect that even if Congress undertook to pass a nationwide abortion law the viability question would stymy passage.
From . LefèvreF. BeauthierJ.-P. Beauthier, in Encyclopedia of Forensic and Legal Medicine (Second Edition), 2016
"Fetal viability is a major issue that is dependent on the evolution and progress of modern neonatology (Beauthier, 2007). It is generally accepted that a 28-week-old fetus that doesn't need resuscitation is viable. However, according to WHO, fetal viability is possible after 20 weeks of fetal life (22 weeks of amenorrhea).Anthropometrical characteristics as well as clinical parameters of fetal age estimation are of high importance."
Big difference of opinion right there on viability - 8 weeks is 20% of the expected 40 week duration of pregnancy. Modern medicine seems to be capable of reducing that 20 weeks even more. I don't think there is any way that Congress can develop a consensus on viability. The European states largely cut off abortion at 12 weeks for any reason other than a serious threat to the health of the mother. There are all kinds of different condition in different countries, some stricter than others, but 12 weeks seems to be the European consensus of "viability". Given the absolutist approach of many pro- abortion people I would be very surprised if at the national level they would be prepared to compromise.
Elective abortion, as Obamacares for "burdens", becomes viable under the Constitution as a progressive tax scheme: keep women affordable, available, and taxable.
You're not dealing with a century of precedent.
Thanks for providing a response.
Stare decisis is fine unless the initial decision is faulty. I looked into Wickard a little more. I can see they reasoning behind it and am less critical of the decision, but I am still of the opinion that its reasoning is dubious. Think it infringed upon individual rights to regulate personal use because a person would then absent themselves from commercial use. It was stretched even further with Raich.
I want to know where people think the line is. But give them time first to look at the pictures and read descriptions of the stages of development. I think this will be surprising to a lot of people.
I agree with you. Most people here don't want a federal law. I think we, as a group lean libertarian, so the results don't surprise me. We would not want federal, but most of us (not me) would probably fall between 6 and 15 weeks for states with the bulk resting in the 10-13 window as being as long as we would allow to give the woman enough time to find out, plan and execute.
@Humperdink — The Court’s remarkably expansive interpretation of Congress’s power to regulate interstate commerce has been with us for almost a century. And for just as long a good number of jurists and legal scholars have complained. It is likely true that the Framers neither intended nor anticipated such an interpretation, but the language at issue lends itself to a broad interpretation, which is why the argument that it is clearly wrong is not so compelling that stare decisis can be easily overcome.
All:
Professor emerita Althouse is absolutely right on the law. There is no way in the world SCOTUS would overrule Wickard. The Commerce Clause is nearly unlimited. The only limit that comes to mind was the Gun-Free School Zones criminal case in 1995, United States v. Lopez. That was the first time in 60 years where the Commerce Clause didn't justify federal legislation.
Right now in Nebraska, the current Roe and Casey law is still good. The number of out-of-state patients from SD, Iowa and other states is increasing. The abortion medical business is an activity that substantially affects interstate commerce.
In this post and the comments, I intentionally played the role of the Socratic method law professor. I wanted to draw out Ann and discuss the law. I think it was enlightening. The Socratic method is the best way to learn things. The adversary system works.
The argument that Congress can not regulate a commerce that does not exist within a State seems right to me in a general sense. Can Congress overrule Federalism and impose any business enterprise on all States? Obamacare was a mixed bag as I recall, but I may be wrong.
Can Congress legitimately force a State to open abortion businesses when they have chosen not to via their own legislative actions?
Socrates wasn't a suck up.
And you ain't no Socrates. Nor are you well versed on recent Commerce Clause jurisprudence.
For 50 years they have had the opportunity to codify abortion law at the local level and have not made the effort
That's because then the blood would be on THEIR hands, rather than just conveniently going along with what the Court said.
Ultimately WI and the other states lacking "modern" abortion laws will develop statutes that suit their citizens
Currently WI and the other states lacking "modern" abortion laws already have laws, laws that protect all human life. That is their default position. If they want different laws -- what you call "modern" abortion laws -- then they will have to embrace some degree of the irrationality of Roe.
Look, if Roe was simply some offense to the niceties of federalism, NO ONE WOULD CARE that it lacked constitutional support. But we all know that the problem with Roe was that it is about killing innocent human beings. Blackmun and his progeny refused to even consider it. And those suggesting that states will rush to LEGALIZE killing babies in the womb before a certain time are likewise putting on those Roe blinders.
Hasn't 50 years of the unrelenting pro-life movement taught you folks anything?
I know that social conservatives have never been particularly liked. They are accepted for their votes, but many want nothing to do with them otherwise.
But see, they aren't going away. Ever. And don't think that you can put pro-lifers and other social conservatives back in the box.
At the federal level and in those states where prenatal life in now currently protected, a viability law will never work. A legal for 15 weeks bill will never be countenanced. A legal for eight weeks bill will be resolutely opposed. ANY bill that would allow ANY intentional destruction of babies in utero will not be accepted.
Now, in those states that now allow babies to be butchered, with more than a few women maimed in the process, bills providing for those limits would be acceptable. A viability law where now it is anything goes throughout all nine months -- like D.C. or Maryland -- will be taken in a heartbeat. Viability states will be pressed to change THEIR laws to a 15-week limit. Efforts will be made for those states at 15 weeks to protect human life at eight weeks.
You folks calling for laws allowing abortions in those states where it now is not allowed -- don't think that you are the plurality in Casey calling all the sides in the national debate to come together under your terms.
Pro-lifers have not labored for 50 years for a paper victory. They are not now going to say, "never mind."
Bender:
Ann Althouse taught con law at Wisconsin for decades. She's up to date on Commerce Clause litigation. She's a legit and neutral expert on the topic.
You can't let your personal view or advocacy color your idea about what the law is.
I think a national (pro-)abortion law would not survive Commerce Clause scrutiny from the court because state abortion bans aren't in the nature of an economic regulation that adversely affects out-of-state purveyors of abortion services; and abortion services aren't ancillary to any interstate commerce.
I don't claim to be an expert in this field of law, but I haven't seen any CC case that clearly involved the federal government making an activity legal nationally that is forbidden locally where the activity itself was not in furtherance of interstate commerce. The closest I can discern was the upholding of the Civil Rights Act's prohibition on segregation in public accommodations under the CC. But that makes sense because clearly restricted the ability of blacks to travel about freely in the Jim Crow South.
A national law conferring abortion rights would not be in furtherance of INTERSTATE commerce. It would be for the purpose of allowing women in anti-abortion states to get abortions within their own state. Thus, its effect would be a REDUCTION in interstate commerce. I can't imagine that such a thing was within the contemplation of the Framers.
If SCOTUS upheld a national "Roe" law in the face of a CC challenge, then it's hard to see how any state law banning or restricting any activity could not potentially be undone by Congress. A state would not be able to prohibit prostitution, for example, if Congress decided prostitution should be legal in all 50 states. Hell, Congress could make it legal in throughout America to sell explosives to small children.
There is no way in the world SCOTUS would overrule Wickard. The Commerce Clause is nearly unlimited.
Is it though? I grant that Wickard will be around for a while, but the interpretations expanding it beyond it's original intent might not be. The fact that the Commerce clause has become practically and override of the framers' intent to limit Federal authority may likely result in some pendulum swinging the other way in the future. Congress should not have the power to regulate anything that has a commercial aspect that might involve more then one state. The intent in Wickard was "substantial influence on price and market conditions". I think people ignore that and substitute "involves commerce"
Maybe the polling Althouse is looking for is yesterday's Harvard CAPS poll. It found that although 55 percent opposed overturning Roe v. Wade, only 25 percent want the Supreme Court to set abortion standards; a plurality, 44 percent, want each individual state to set them, and 31 percent favor Congress doing it.
Also, 37 percent think their state should allow abortion only in cases of rape and incest, 12 percent up to 6 weeks, 23 percent up to 15 weeks, 18 percent up to 23 weeks, and 10 percent up to 9 months.
So you think it is okay to murder babies as a means of birth control, as long as the baby is 10 weeks old or less?
David Begley,
"Wickard v. Filburn is a core precedent and can’t be overruled."
On what basis is it untouchable?
I'm with Wa St Blogger: The extension of the commerce clause from actual commerce -- you know the thing (The actual buying, selling, or trading goods and services, including intangible ones, from a person or entity in one state to a person or entity in another) -- to such extra-constitutional bullshit as "having moved in" (the constitution says absolutely nothing about after-effects) or "having an effect on" (or, more honestly,"which an advocate manages to claim might have an effect on") is a huge, catastrophic, and unjustifiable by the text extension.
Oops, that was supposed to say "which an advocate manages to claim with a straight face might have an effect on"...
If you leave some part of it to the states, you must leave all of it to the states.
That said, I believe life is created at conception, and if you are going to willingly engage in sex, even with birth control for women and protection for men, you need to be prepared for the consequences. A big part of the consequences is the assumption of responsibility by both parties in protecting their child. If they aren't able to care for the child after birth, place it for adoption.
Interesting to see some discussion of Commerce Clause issues after nearly 45 years of practicing law having nothing to do with the same outside the context of state taxation (i.e., Complete Auto Transit v. Brady and all the stuff it overruled!).
>>Wickard v. Filburn
Ah, the one about growing wheat for your own consumption. That was the one I had vaguely remembered as showing that the Commerce Clause can justify almost (I was going to say "just about," but it just(!) didn't seem right) anything, as opposed to Althouse's original reference to Heart of Atlanta, which I didn't particularly remember (or, as Gilbar said, "Is there ANYTHING that Commerce Power CAN'T do?" Answer: pretty much no, under current constitutional jurisprudence, as Althouse and Begley have advanced).
>>Wickard v. Filburn is a core precedent and can’t be overruled./The Commerce Clause is nearly unlimited.
Not sure I understand the concept of a "core precedent" that "can't" be overruled. But agree that it would be a major thing (for want of a better word) for the Commerce Clause precedents (however questionable they may be) to be overruled at this point.
>>Wire hanger control.
Just shows again what a bad person I am, but I chuckled a bit about that one, in the context of the Supreme Court precedence referred to above.
>>jim5301: "I thought I was reading a different blog."
Mayhaps because you make stupid, bigoted assumptions about the commenters here (of which I am rarely one and didn't/don't vote in the polls). Maybe you could open your mind about whether people who disagree with you on a lot of issues are vile, ignorant idiots. You might also adopt Howard's tell and include "you people" in comments that amount to nothing more than insulting rants about the readers/commenters on Althouse's blog.
--gpm
How about getting the federal government out of our everyday lives? You know, the way James Madison described in The Federalist #45...
"The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state."
Or is that a bridge too far?
Dave Begley
Ann Althouse taught con law at Wisconsin for decades. She's up to date on Commerce Clause litigation. She's a legit and neutral expert on the topic.
She is legit. On abortion, she is in no way 'neutral'. She has stated she is staunchly and unapologetically pro-choice.
I missed the poll, alas, but my vote would have increased the 8% just a bit. All the discussion of cases and precedents etc more or less goes over my head but I saw this essay, by Professor Robert George and someone else, earlier today; missed it when it was published at WaPo at the beginning of last month.
@FIDO —
Our hostess professor is indeed pro-choice, but chiefly in the legal sense. IIRC she acknowledges the serious moral implications. Also, IMO she tries hard to be fair-minded. I admit I can understand her policy preference even if I disagree with it, but I honestly cannot understand her support for the horribly flawed Roe.
I don’t know that Congress has the power to fully ban or fully legalize abortion. But, the SCOTUS did state that the second amendment is about self defense, so I do believe Congress can legalize and require access to abortion to protect the life of the (don’t cancel me but I don’t know the right word) mother using the 2nd and 14th amendment as the justification. Of course, the Dems would NEVER do that because they need the rednecks and minorities disarmed (their words, not mine).
Why not leave it to the states?
It'll be something for Democrats to campaign on and deliver.
I suspect they won't because their leadership see women as tools, providing money and votes for the (mostly male) leadership and their activist allies.
Ann Althouse said:
. . .Wickard v. Filburn, 317 U.S. 111 (1942). These examples are by no means exhaustive, but the pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained
________________________________
Having reviewed the Filburn decision, I find I must agree with it. But ultimately, I doubt it helps Congress.
“In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee’s 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940 before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which under the terms of the Act as amended on May 26, 1941, constituted farm marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all . . .
“It is urged that under the Commerce Clause of the Constitution, Article I, § 8, clause 3, Congress does not possess the power it has in this instance sought to exercise. The question would merit little consideration since our decision in United States v. Darby . . . sustaining the federal power to regulate production of goods for commerce except for the fact that this Act extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm. The Act includes a definition of ‘market’ and its derivatives so that as related to wheat in addition to its conventional meaning it also means to dispose of ‘by feeding (in any form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, or to be so disposed of.’ The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed of nor used except upon payment of the penalty or except it is stored as required by the Act or delivered to the Secretary of Agriculture.
“Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most 'indirect.' In answer the Government argues that the statute regulates neither production nor consumption, but only marketing; and, in the alternative, that if the Act does go beyond the regulation of marketing it is sustainable as a 'necessary and proper'15 [Constitution, Article I, § 8, cl. 18.] implementation of the power of Congress over interstate commerce.”
“Not long after the decision of United States v. E. C. Knight Co., supra, Mr. Justice Holmes, in sustaining the exercise of national power over intrastate activity, stated for the Court that 'commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.' . . . It was soon demonstrated that the effects of many kinds of intrastate activity upon interstate commerce were such as to make them a proper subject of federal regulation . . .”
“In the absence of regulation the price of wheat in the United States would be much affected by world conditions. During 1941 producers who cooperated with the Agricultural Adjustment program received an average price on the farm of about $1.16 a bushel as compared with the world market price of 40 cents a bushel . . .”
Three times the market price is oppression.
{To be continued}
Filburn and abortion, part 2
“The effect of consumption of homegrown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 per cent of average production. The total amount of wheat consumed as food varies but relatively little, and use as seed is relatively constant . . .
“The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial . . .
“It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices . . . Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices . . .”
The farm programs may have been imbecilic, but stupidity =/= unconstitutional.
“Appellee's claim that the Act works a deprivation of due process even apart from its allegedly retroactive effect is not persuasive. Control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply. Appellee's claim is not that his quota represented less than a fair share of the national quota, but that the Fifth Amendment requires that he be free from penalty for planting wheat and disposing of his crop as he sees fit.
“We do not agree. In its effort to control total supply, the Government gave the farmer a choice which was, of course, designed to encourage cooperation and discourage non-cooperation. The farmer who planted within his allotment was in effect guaranteed a minimum return much above what his wheat would have brought if sold on a world market basis. Exemption from the applicability of quotas was made in favor of small producers.30
[§ 7 of the amendment of May 26, 1941 provided that a farm marketing quota should not be applicable to any farm on which the acreage planted to wheat is not in excess of fifteen acres. When the appellee planted his wheat the quota was inapplicable to any farm on which the normal production of the acreage planted to wheat was less than 200 bushels. § 335(d) of the Agricultural Adjustment Act of 1938, as amended by 54 Stat. 232, 7 U.S.C.A. § 1335(d).]
He could, therefore, have limited himself to 4.9 extra acres, and been home free. He could also have not been part of the program.
{To be continued}
Filburn and abortion, part 3
“The farmer who produced in excess of his quota might escape penalty by delivering his wheat to the Secretary or by storing it with the privilege of sale without penalty in a later year to fill out his quota, or irrespective of quotas if they are no longer in effect, and he could obtain a loan of 60 per cent of the rate for cooperators, or about 59 cents a bushel, on so much of his wheat as would be subject to penalty if marketed.31 [§§ 6, 10(c) of the amendment of May 26, 1941.] Finally, he might make other disposition of his wheat, subject to the penalty. It is agreed that as the result of the wheat programs he is able to market his wheat at a price 'far above any world price based on the natural reaction of supply and demand.' We can hardly find a denial of due process in these circumstances, particularly since it is even doubtful that appellee's burdens under the program outweigh his benefits. It is hardly lack of due process for the Government to regulate that which it subsidizes.”
Having signed up with the program, he decides not to cooperate, but still wants his subsidy.
“The Act also provided that the farmer who, while quotas were in effect, marketed wheat in excess of the quota for the farm on which it was produced should be subject to a penalty . . . Marketing of wheat was defined as including disposition ‘by feeding (in any form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged. . .’ ”.
So this should not have been a surprise to Filburn.
“The penalty provided by the amendment can be postponed or avoided only by storing the farm marketing excess according to regulations promulgated by the Secretary or by delivering it to him without compensation; and the penalty is incurred and becomes due on threshing.38 [Wheat—507, § 728.251(b), 6 Federal Register 2695, 2701.] Thus the penalty was contingent upon an act which appellee committed not before but after the enactment of the statute, and had he chosen to cut his excess and cure it or feed it as hay, or to reap and feed it with the head and straw together, no penalty would have been demanded. Such manner of consumption is not uncommon. Only when he threshed and thereby made it a part of the bulk of wheat overhanging the market did he become subject to penalty. He has made no effort to show that the value of his excess wheat consumed without threshing was less than it would have been had it been threshed while subject to the statutory provisions in force at the time of planting. Concurrently with the increase in the amount of the penalty Congress authorized a substantial increase in the amount of the loan which might be made to cooperators upon stored farm marketing excess wheat. That appellee is the worse off for the aggregate of this legislation does not appear; it only appears that if he could get all that the Government gives and do nothing that the Government asks, he would be better off than this law allows. To deny him this is not to deny him due process of law.”
I begin to get the feeling he always intended to sell it.
{To be continued}
Filburn and abortion, part 4
Somehow, though, I don’t see how any of this applies to abortion. Is there an interstate market in abortions? Do limits in some states substantially effect said market? Is the public interest served by encouraging or discouraging them? Filburn regulated wheat ‘marketing,’ but this sounds like the Feds trying to regulate bakery products because so many are made of wheat flour.
In the absence of an actual market for abortions, I don’t think the Supremes let them get away with this.
I used to go square-dancing in WI. Did my crossing the border “substantially effect” the interstate market in recreation? I think we’ve stretched things past the breaking point here. Thomas’s dissent in Gozales seems on point.
YMMV.
Abortion providing is a commercial activity and it has a substantial effect on interstate commerce. That's doctrine that Lopez preserved.
The first is true
The second is not
You're killing a baby inside a woman. That's about as non "interstate" as you can get
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