If Roe Gets Overruled, Abortion Policy may not be “Left to the States”

The oral argument was heard last week Dobbs V. Jackson Women’s Health OrganizationIt was clear that there are good chances the Supreme Court will overturn, or limit severely, abortion rights which were long protected by law. Roe V. Wadeand all subsequent precedents. If RoeMany people believe that the state will decide abortion policy if it is overruled. There is hope that the climate war on abortion will be lessened. The majority of red states could choose their preferred system. People opposed to the policies of their state might “vote with them” and vote for alternative solutions. They could even cross state boundaries to obtain an abortion. Then, they can return home to support their decision.

This could be a happy outcome, but it might not happen. It is possible that the federal government may get in on the abortion regulation business. There is a lot of potential for regulation under the current Supreme Court precedent. However, this precedent can be potentially limited or reversed. Then, pro-abortion advocates could owe an unimaginable debt to Supreme Court Justice Clarence Thomas.

The immediate aftermath of an abrupt reversal Roe, States would really be in charge of the developments. There is very little current federal legislation regarding abortion. Red states may enact new restrictions or reactivate those that have been blocked. Roe. It is possible that the blue states would continue to offer abortions and even increase their availability. Residents of red states would be more likely to seek abortions in liberaler states, and may cross state boundaries to obtain it.

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However, Congress could alter this situation. I believe that Congress does not have the power to regulate abortion. The Constitution’s original text and meaning are incompatible with my views. Current Supreme Court precedent suggests the contrary.

In cases like Gonzales v. RaichThe Supreme Court ruled that Congress has the power to regulate interstate commerce. It can also restrict virtually any economic activity, provided it has an “substantial impact” on interstate trading. It is very broad to define “economic activity” as any type of commodity production, distribution, or consumption. The Commerce Clause allowed the Court to enforce a federal prohibition on marijuana possession that hadn’t crossed state borders or been sold on any market, even an intrastate. Nearly all abortions are about the “consumption and distribution” of medical supplies. A majority of abortions can be considered economic transactions, as doctors and nurses are compensated to do them.

It could be argued that interstate commerce is not being regulated by a federal law that bans or severely restricts abortion. The real motive is to ban abortion, regardless of interstate commerce. Similar reasoning can be used for the cannabis ban, which was also upheld. RaichThese laws are in addition to federal laws that apply the War on Drugs. They prohibit interstate drugs trade, but also ban illegal possession and distribution in the state.

The possibility exists that the interstate abortion market will grow in response to a Supreme Court ruling. RoeCongress may claim that intrastate abortions should be stopped in order for them to be regulated across state lines. It is possible for abortion to be banned in one state and legal in another, which creates incentives for people living in A to travel to B to obtain abortions, even though the federal government has enacted a ban. This ban could be enforced more efficiently if abortion was legal in both A and B. The Congress can restrict abortion in any state because it helps to suppress the abortion market.

Commerce Clause restrictions may not apply to abortions which are done on a personal basis and by personnel who give their services at no cost. However, such cases represent a tiny percentage of all abortions. In addition, Raich, Even though Angel Raich had received marijuana free of charge, the Court upheld Angel Raich’s ban. It was argued that illegal drugs can be produced and distributed even though they are not commercially owned.

Some readers may think these arguments about commerce clauses are a form of sophistry, which is a shame for lawyers. That is exactly my reaction. It is something I find offensive and have been doing for a long time. RaichThis is an awful decision and should be reversed. This is precisely the type of reasoning that won in RaichThis provides a legal basis for many of the federal War on Drugs.

Congress may not only attempt to regulate abortion directly by using Commerce Clause rights, but it might also indirectly try by using the Spending Clause power of conditional grants to state governments. If the state governments ban or significantly restrict abortion, Congress could pass legislation to restrict various forms of grants for health care. Under current Supreme Court precedent, these types of spending restrictions can be subject to several limitations. It is not possible for the amount involved to be too large to constitute “coercive.” The conditions have to relate to the grant purpose and must also be stated clearly on the law, and not inferred from the executive branch. During its campaign to reduce federal funding to “sanctuary towns”, the Trump administration violated all of these conditions.

This article will not cover all possible arguments or counterarguments. It all depends on how the legislation is written. However, I believe that a well-drafted restriction on spending regarding abortion rights can bypass these hurdles. Blue states could then be forced to choose between losing their federal health insurance grants and imposing restrictions on abortion.

Because states can potentially avoid these conditions, the Spending Clause approach to abortion rights is less dangerous than the one that uses the federal funds. Such refusals of federal funding are not common. However, a controversial ideological issue such as abortion could be an exception. Some blue states, especially relatively wealthy ones,  might tell Uncle Sam to take his money – and his abortion restrictions – and shove them.

Liberal efforts to limit abortion will likely be covered by the federal power. Congress may be able to use Commerce Clause reasoning as a justification for laws that override state abortion regulation. The condition of federal grants granted to states could be that they remove state restrictions.

All of the above assumes that Supreme Court Federalism Precedent is unaltered. This might change.

Gonzales v. CarhartThe Supreme Court affirmed a federal ban on “partial births” after the late term in 2007 to protect individual rights. Justice Clarence Thomas offered a concurring view, arguing that it is possible for the law to be outside the Commerce Clause’s reach. Thomas had previously written a strong dissent. Gonzales v. Raich. He expressed his concern about the Supreme Court’s decision and demanded that it be reconsidered and limited.

In 2018, I explained to Thomas why Thomas could vote to repeal federal abortion restrictions. This post was inspired by Michael Dorf, Cornell Law Professor. Thomas could be joined by one or more conservative justices. The coalition could see federal abortion restrictions being overturned by conservative justices believing they are not within the government’s power, as well as liberal justices objecting on grounds of individual-rights. However, it is possible that liberal jurists might support the federalism argument in opposition to these restrictions. Liberal views on constitutional federalism have changed a lot in the last few years. Some of this shift could be beyond what was caused by Trump’s policies. Either conservative or liberal judges may also think up clever ways to restrict the power of RaichIt is, even though it may not be completely overruled.

However, my 2018 post explains that abortion rights plaintiffs attempting to challenge federal restrictions need to raise the issue of federalism if they wish to receive Thomas’s vote. His policy is to not consider constitutional arguments that haven’t been specifically brought up by litigants. Like him, conservative lower-court judges also hold similar views. A general idea is that abortion rights advocates should make federalism issues part of their arsenal, even if it goes against ideological principles. Immigration advocates made the same shift in sanctuary city cases and it’s not impossible for them to do so again.

Although the abortion issue is complex, courts could use it to enforce constitutional restrictions on state grants. Here are some suggestions.

State governments or others could use Federalism arguments to challenge federal laws protecting state abortion rights. When considering the litigation strategy of both conservatives and libertarians, they may have to choose whether or not to preserve the autonomy of their states.

The Supreme Court is expected to overrule all of these and severely limit them. Roe V. WadeThat Congress could take advantage of this shift and enact new legislation on abortion. Both outcomes are possible, but the former is less likely. Some of the assets might be preserved by Court. RoeIn one form or another. Even if this does not happen, some political forces might prevent federal abortion legislation from becoming law.

The possibility that federal abortion legislation could be passed in the wake Roe’sOverruling should be considered as a possibility, at the very least. A supporter both of abortion rights and strict limits on federal power, it is my hope that this will lead Supreme Court justices as well other judges to reconsider horrible decisions such. Gonzales v. RaichLimit them at most.