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Roe v Wade Is Going To Turn Out To Be Terribly Fun

An English judge

Fun in the sense of watching a legislative and political train wreck that is.

Leave aside our own arguments for or against abortion and just consider this:

The White House said yesterday that President Biden remained committed to his election campaign pledge to codify Roe v Wade in law notwithstanding the outcome of the latest case.

Think about this within the constraints of the American political system and set up. That Constitution thing and all that.

So, before Roe v Wade abortion was something left to the States to decide upon. There was a general and ongoing loosening of restrictions upon it over time. NY State largely had abortion on demand by the time Roe was decided. Varied southern states – say, Mississippi – really just didn’t.

Roe then overlaid this federalism with a constitutional point. Federalism here meaning that the Federal government gets to do the things which are listed in the Constitution and everything else is left to the varied States, each of which is sovereign in that sphere and over their own geography. So, in order to gain a single national policy it has to be one of the enumerated powers of the Federal government or it has to be that other thing, one of those constitutional rights which apply everywhere and be damned to State power.

There was no ability for there to be a Federal law on abortion. It’s just one of those things that part of government doesn’t have power over. But if it’s all about the constitutional rights then the courts – not politics – may indeed set the rules.

If Roe is overturned – my best guess for what little it’s worth is that it will be and only in part – then everything then gets handed back to the States to deal with in whatever space the court decision leaves them.

Democracy wins. Which is one of those amusements as the screaming from the left currently is that democracy is in peril. But hand something back to democracy to decide and they scream blue bloody murder.

OK. So, Biden is saying that he wants to encode into law the current abortion freedoms. But he can’t do that with a Federal law. That would never withstand the court cases that would be brought. It’s either a constitutional right, the Roe position, or it’s a State matter, the previous position.

Except, there’s one more option, a constitutional amendment. That would be a Federal law which then each state signs up to or not, enough of them do so and it becomes, again, one of those things the courts rule upon. But note that it does require the States to, individually, sign up to it.

Myself I think it unlikely that an amendment could be successfully crafted that would get the necessary (3/4ths is it?) portion of States to sign up. Any thing less liberal than the current would be rejected by some to many states, anything that’s not more restrictive by another some to many. It’s almost as if the resort to the penumbra of the constitution was, in Roe, itself an agreement that there was going to be no national political consensus.

We might even note that American law here is vastly less restrictive than that in many other rich countries. It’s not just the obvious places like The Vatican that restrict second trimester access for example.

But the big point here is that codifying Roe v Wade into the law doesn’t actually work at the Federal level where Biden operates. It’s either a State matter or it’s a constitutional one.

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Spike
Spike
6 months ago

Very good, Tim; better than most US citizens! It is not a federal role. (https://www.law.cornell.edu/constitution/tenth_amendment) The states would and did decide the question differently. There remain many options other than death by coat hanger. And it is 3/4 of states (yikes, even those with small and white populations!) whose legislatures would have to approve a change.

Spike
Spike
6 months ago
Reply to  Spike

Biden wants to do the same thing to state elections (that’s H.R. 1) and to land-use planning (that’s hidden in the “Infrastructure” Bill). He does not know what federalism is for (nor borders, taxation, or currency) except a vehicle with which to pander to his herd’s vision of eternal tenure.

TD
TD
6 months ago

There is an interesting phenomenon in that conservatives are largely content to let red states be red states and blue states be as whacky as they wish. However, blue states and their representatives demand that red states become more like them and seek to do this by imposition. You see it in lots of areas – such as proposals for an increased uniform minimum wage laws, abortion laws, election laws, etc. You also see in internationally such as ideas that some nations are trying to demand common taxation practices. The left, which claims to support diversity, certainly hates it unless… Read more »

Phoenix44
Phoenix44
6 months ago
Reply to  TD

Exactly right and part of the problem that many on the Left failed to understand about Brexit – I’m happy to let say France regulate its labour market to death if it wants but not at all willing to (i) pay for it and (ii) strangle our labour market so that the French can still compete. Bizarrely the Left seem to thin that if there’s open competition between the way they want to run things and they wat the Right want to run things they won’t win.

Leo Savantt
Leo Savantt
6 months ago

The relatively new phenomena of live term abortions, the practise of aborting foetuses that are capable of survival outside of the womb post-abortion and therefore need either abandoning or actively dispatching, has changed the legal and moral landscape. The, to many, sickening phenomena of live and living post abortion beings being thrown into a bucket and left to die, or more actively killed, should be a federal issue, homicide being a Federal felony.

Spike
Spike
6 months ago
Reply to  Leo Savantt

No, these rare edge conditions make for persuasive rhetoric but don’t change the moral landscape. Birth is still generally the boundary of legal personhood (not “human life”). Changing that boundary constitutes a big grant of power to the state: Not just to prohibit abortion but to dictate conduct during pregnancy, and to actively search the fertile female population on a regular schedule for any such “persons” in need of government protection.

Leo Savantt
Leo Savantt
6 months ago
Reply to  Spike

Changing the definition, or rather the timing of that definition, of what is and what is not a legal person does not grant more power to the Federal government, it simply changes when that power can be applied. In New York many leftists are advocating live term abortions, abortions carried out legally literally one minute before a natural birth would have occurred. This entails the mother giving birth and then either proactively killing the child or neglecting it and leaving it to die, both of these scenarios have happened in the USA. This is not a rare edge issue. Under… Read more »

Boganboy
Boganboy
6 months ago
Reply to  Spike

Interesting. So could Biden then alter the legal definition of personhood to make those below, say, the age of five, non-people? (Of course if he gets away with this, all those with white skins will immediately be deprived of personhood.)

It seems to me grossly implausible that this sort of reform could go through. But of course I’ve said that before.

Spike
Spike
6 months ago
Reply to  Boganboy

The President can’t change any legal definitions. Many federal laws grant discretion to agency Secretaries, which they exercise following the President’s wishes. Abortion policy is currently set nationwide by an arbitrary Supreme Court decision. If policy were restored to the states, any state finding that birth only occurs at age 5 would be a violation of Due Process rights.

Boganboy
Boganboy
6 months ago
Reply to  Spike

Thanks.

Phoenix44
Phoenix44
6 months ago
Reply to  Spike

I’m confused by your argument. We don’t grant a living human any rights as a living human just because otherwise the state might want to protect it? That makes no sense – what’s the difference between an unborn human and any other human in terms of the overreach of the state? If the state can tell me what to eat and what not to drink, what’s the big deal that it does the same to a pregnant woman? The problem remains the state. Allowing abortion because it stops the state overreaching for a few months out of 85 years is… Read more »

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