Posted on 05/05/2022 6:42:58 AM PDT by Kaslin
The authenticated leak of Justice Samuel Alito's draft 5-4 opinion overruling the United States Supreme Court 1973 abortion rights precedent of Roe v. Wade is likely to stick. The draft fully reflected the judicial philosophies of the five-member majority and the oral argument last December in Dobbs v. Jackson Women's Health Organization.
But overruling Roe is not the nail in the coffin for abortion rights. Far from it. The overruling would entrust abortion policy to the 50 state legislatures, with a marginal role for the federal government through the power of the purse or the regulation of interstate commerce, e.g., the Hyde Amendment, which forbids federal monies to underwrite elective abortions.
Moreover, state policies will continue to be constrained by constitutional limitations. Under the Privileges and Immunities Clause of Article IV and the right to interstate travel, anti-abortion states are prohibited from preventing their citizens from obtaining an abortion in a pro-abortion state. Additionally, conservative Chief Justice William H. Rehnquist in Webster v. Reproductive Health Services declared state statutes decreeing that life begins at conception, endowed with rights of personhood protected by the Fourteenth Amendment, would be constitutionally suspect.
State legislatures are likely to exhibit wide variations in abortion policies. Liberal states like California, New York and Connecticut will probably endorse subsidized abortions on demand. Remember, then-California Gov. Ronald Reagan in 1967 signed a liberal state abortion law that anticipated the Supreme Court's holding in Roe.
Approximately one-third of the states had liberalized their abortion laws in the three years antedating Roe. Further, abortion-rights advocates are well-funded. They can fend for themselves in the political arena: Planned Parenthood, NARL Pro-Choice America, the National Abortion Rights Federation, the National Organization of Women and the American Civil Liberties Union. Anti-abortion organizations are equally well-endowed and politically organized: National Right to Life Committee, Pro-Life Action League, Susan B. Anthony List and the Republican National Coalition for Life. Strict anti-abortion laws are likely to proliferate in conservative states like Missouri, Ohio, Texas and Georgia.
It is not anomalous that under the Constitution issues of considerable moral moment are addressed differently from state to state -- for example, laws against liquor or gambling. And if abortion is thought to be sufficiently morally momentous to require a national policy, then amending the Constitution is the path forward, as with the Civil War Amendments that emancipated Black people and endowed them with full rights of citizenship. During the 45 years that have elapsed since Roe, Congress has refrained from proposing anti-abortion or abortion-rights constitutional amendment, and two-thirds of the states have never summoned a constitutional convention under Article V to do so. But the political dynamics favoring a constitutional amendment may change after Roe is overruled.
The predicable new methods of inducing abortions through interstate delivery of pills or telemedicine are inevitable and may confound abortion restrictions. The Commerce Clause of the Constitution probably prohibits states from banning interstate commerce in abortion pills or medical advice or treatments over the internet, especially in the home. If so, state abortion restrictions will be easily circumvented. The Supreme Court, however, has held that Congress may prohibit the use instrumentalities of interstate commerce to promote activities thought immoral or contrary to the national welfare -- for example, liquor, lottery tickets, prostitution, misbranded drugs and impure food. These precedents suggest Congress could ban the use of instrumentalities of interstate commerce to promote abortion, at least in pro-abortion states. The question is not free from doubt. If Congress remains divided, however, no abortion action is likely.
The issue will remain with the states after Roe is overruled, and medical technology will be in the catbird seat. Anti-abortion groups must remain politically active or confront defeat through congressional inaction.
It was probably leaked in order to give the democrats time to deal with the ruling while they still have total control of the Congress.
I’m sure that’s why some liberal idiot who works at the Supreme Court, threw this hand grenade into the proceedings.
I heard someone on one of the talk radio shows call in, suggesting someone on the conservative side leaked this. That seems doubtful to me. Nobody on the conservative side would have any motive, or anything to gain, by leaking this.
And it does give the Democrats, the media, Hollywood idiots, etc. more time to hyperventilate and raise money before the mid term elections. It also does give them more time in Congress, if they want to pass abortion laws in Congress, while Democrats still have the power.
Some of the hyperventilating is not a pretty sight. Elizabeth Warren shouting and ready to cry is not exactly endearing anyone to their cause.
Striking down Roe v Wade only temporarily returns regulation of abortion to the states.
The next step would be a Supreme Court decision affording the fetus all the rights of a born person, eliminating abortion altogether.
Perhaps off topic ,but why do Democrats love abortion so much?
Why is abortion the hill they want to die on, so to speak?
Elizabeth Warren hyperventilates about how the American people oppose overturning Roe Vs. Wade.
But this ruling would send abortion regulations back to the states, to decide through the legislative process.
If abortion is so popular, per Elizabeth’s own criteria, then liberalized abortion laws will be enacted by the people, and their elected representatives.
So then why the hyperventilation, when if abortion is as popular as the liberals claim, the legislative process will give them their lenient abortion regulations???
Is it because they hate the democratic process, is it because they have that we are a nation of 50 states which can have different laws on different subjects? Are they anti-democratic, and prefer that judges in Washington, DC, make all decisions on issues?
IMHO you last says it all...Representative gov is too sloppy and difficult to control outcomes...The Dims can’t be sure to get their way always...So they prefer rule by decree...An executive order or judicial opinion...
“Stroke of a pen...Law of the land...Kinda cool!” comes to mind...
I scrolled through social media this morning and I am wondering if part of this isn’t a data mining exercise. On FB, some one posted a pizza with the pepperoni shaped like a woman’s internal reproductive organs. Gross - but the usual suspects on my friends list liked it.
There are 3-4 memes and quotes being posted and re-posted. I bet the alogrithms are being fine tuned now for political ads that will crop up in the fall.
That's egggsakly RIGHT!
There's nothing democratic about democrats.
Easily provable with DNA.
Yes. Most of their major successes have been through immoral judges, not the legislative process where morality has a better chance of winning. Gay marriage comes to mind.
“The Commerce Clause of the Constitution probably prohibits states from banning interstate commerce in abortion pills...”
Oh, so I can take marijuana that I legally purchase in Illinois and transport it to Florida or Louisiana with no legal worries?
Don’t think so!
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