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Congress Has No Authority to Pass a Federal Abortion Ban

And yet: The Commerce Clause is magic!, say lawmakers

isabisa/Flickrisabisa/Flickr

The U.S. House of Representatives yesterday passed a bill that would ban abortion after five months pregnancy throughout America. It has no legal authority to do so. Regardless of your stance on abortion, if you care about constitutional governance, this should freak you out 

Even if "a prohibition on post-20-week abortions would be constitutional if enacted by a state, that does not mean that Congress can enact such a measure," explains The Volokh Conspiracy blogger and Case Western University law professor Jonathan H. Adler.

The federal government, after all, is a government of limited and enumerated powers. Whereas states retain residual police power authority to protect public health and welfare, the federal government has no such authority. Just as there is no constitutional basis upon which Congress could enact a general law against murder, there is no clear constitutional basis for a prohibition or regulation of abortion. As with murder, it’s a matter generally left to the states.

Federal legislators' loophole? The Commerce Clause! Of course. This constitutional clause grants Congress the power "to regulate commerce with foreign Nations, and among the several States." The federal government has gotten incredibly good at shoehorning anything it wants to regulate but lacks real authority to into a matter of interstate commerce.

"Congress has authority to extend protection to pain-capable unborn children under the Supreme Court’s Commerce Clause precedents," states the new House bill (known as the "Pain Capable Unborn Child Protection Act," or PUCPA). It also claims authority under the equal protection, due process, and enforcement clauses of the Fourteenth Amendment. 

"These findings suggest PUCPA’s sponsors have at least thought about the constitutional basis for the legislation," writes Adler. "Unfortunately, they have not thought about the question enough, for neither the Commerce Clause nor the 14th Amendment provides authority for this legislation." 

"Abortion is not commerce, and not all abortions necessarily occur within the scope of commerce, let alone commerce 'among the several states,'" Adler continues.

As Glenn Reynolds notes, "the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power." [emphasis mine] For this reason, conservative Republicans who urge courts to respect the limits on federal power—and who argued the individual mandate exceeded the scope of Congress’ Commerce Clause power—should be embarrassed to support the invocation of commerce here.

[...] The attempt to justify PUCPA under the 14th Amendment is not much better. My friend Ramesh Ponnuru argues that federal abortion regulations are permissible efforts to ensure "equal protection." Writes Ponnuru: "If a state does not offer [equal] protection to persons, Congress may intervene either by forcing states to perform this duty or by stepping in itself." Not really, at least not where protected classes are not involved. Further, remedial legislation under the 14th Amendment must focus on state actors. This is but one of the reasons the Supreme Court struck down portions of the Violence Against Women Act (VAWA) in U.S. v. Morrison, a decision most conservatives cheer.

Relevant legal questions—how to define murder, when to excuse the taking of life as defensible or otherwise permissible, even defining what constitutes the end-of-life for medical and other purposes—have always been matters of state law. Drawing such lines necessarily involves drawing distinctions that will please some and offend others, but that hardly creates an equal protection problem, let alone justify federal legislation. Again, where protected classes are not involved, a state’s decision to draw different distinctions than would the federal government, even on matters involving life and death, is insufficient to justify a federal law.

For more on PUCPA, here is Reason's Nick Gillespie riffing on Reynolds earlier this week. "Increasingly, mostly Republican state legislatures have been using exactly the sort of onerous, retroactive regulations on medical providers they would decry in any other context to try and shut down abortion clinics in states across the country," wrote Gillespie. "Which is all well and good if stopping abortions at any cost is your goal. But it does come at the cost of pretending that you and your party is absolutely devoted to principle and process rather than results." 

Photo Credit: isabisa/Flickr

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  • Idle Hands||

    This is my least favorite conversation piece reason provides.

  • Bo Cara Esq.||

    Commerce Clause?

  • Zeb||

    Yeah, it's all been said. I still can't help myself sometimes. I think the philosophical discussion is actually interesting from time to time. But that's all been said too.

  • MJGreen||

    After yesterday's atheism thread, I'm feeling more nihilistic than usual, so now I want to argue more forcefully for the pro-choice side. Fuck it all, we're not gonna run out of babies.

  • Francisco d'Anconia||

    Those babies r gonna take r jerbz.

  • JW||

    Those babies. You didn't abort them.

    I'm here all day, folks.

  • Beautiful Bean Footage||

    Those babies r gonna take r jerbz.

    But if those babies aren't born, then we have to import more Messicans from south of the border to keep socialist insecurity solvent. And 90% of then will vote democrat, turning America into a worker's paradise.

  • Fist of Etiquette||

    There was an atheism thread yesterday?

  • ||

    Rename it "PUPAE; Pretending Unborn People Aren't Expendable"?

  • ImanAzol||

    Conservatives should embrace abortion so they can eliminate gay babies before they become pedophile priests.

  • Sudden||

    Yeah, it's all been said. I still can't help myself sometimes. I think the philosophical discussion is actually interesting from time to time. But that's all been said too.

    While this is true, it's worth noting that the issue here should be independent from one's stance on abortion. It's about federal powers and commerce clause jurisprudence. While I'm nominally pro-life, I actually find ENB's arguments here to be somewhat compelling. Though I'd be interested in hearing a defense of this (or comparable) legislation from someone who would support it without reliance on the commerce clause if such exists (i.e., a ban on abortion procedures at institution that receive federal funding would be constitutional).

  • rocks||

    If the federal government was able to declare abortions legal (which it did through the courts), why wouldn't the federal government be able to declare some limits?

    You can't have it both ways, if the federal level can set the law one way, then it can do so the other way on the same issue.

    To put it another way, where did the courts find the authority for Rode vs Wade? Was this the commerce cause in action?

  • RoninX||

    The federal government didn't legislate the legality of abortion, the Supreme Court said that individuals have the right to choose abortion, just like the Supreme Court said that individuals have the right to bear arms. That fact that the Supreme Court says that something is an individual right does not grant the government the power to restrict it -- it does exactly the opposite.

  • rocks||

    Whether it comes from the judicial, legislative or executive branch is immaterial, the federal government requires constitutional authority.

    Where in the constitution does it grant individuals the right to abortions, which is required for the courts to uphold such a right? Hint, you won't find it because it is not there.

    I see the right to bear arms, to free speech and 8 other rights. This is the authority for the courts to enforce rights.

    You can't have it both ways. You can't say that the federal government can dictate one way on a topic, and later argue it does not have the ability to go the other way.

    If the federal government does not have the constitutional right to outlaw abortions (which I agree with), then Rode vs. Wade was an unconstitutional ruling. Period.

  • GregMax||

    You're not too bright.

  • ||

    Assuming the fetus is not a person, I think abortion falls under the 4th and 9th amendments.

    If the fetus is a person, it's murder all the way down.

  • plusafdotcom||

    and any attempt to define "person" to include "fetus" is circular 'reasoning,' by the way...

    the 'definition of "person" is always by Agreement/Consensus,' and can't be anything else.

    Claims to the contrary are delusional or clever AND poor 'wordsmithing.'

  • RoninX||

    You can debate the point at which a fetus becomes a sentient being and deserves 14th Amendment rights. That's not what this article is about.

    This article is about whether the Commerce Clause grants the ability for the Federal Government to regulate *anything*. Liberals think it does; libertarians think it most definitely doesn't; conservatives flip-flop depending on the issue.

  • ||

    How would the case of a non-profit, religious based hospital that supported late term abortion be handled?

  • Win Bear||

    I am actually against federal restrictions on abortions, but I think one might defend such a ban based on some kind of equal protection argument; to do that, you have to argue that the fetus is a person and that somehow it has a legal right to be in the mother's womb.

    Having said that, I find the entire abortion debate pointless. Early abortions aren't going to be banned, and practically no woman has late term abortions unless there is a compelling reason. This is just a losing issue for social conservatives.

  • plusafdotcom||

    And by a lot of definitions, a fetus is a 'parasite,' too, and most parasites don't get granted a lot of rights...

    Save the Intestinal Worms! They're People! Why? Because I defined 'em as such!

  • Almanian!||

    This is the worst chat room EVER

  • Dweebston||

    It's not a chatroom, it's a fireworks and popcorn and butthurt breeding ground.

  • JFree||

    And where are the women?

  • Almanian!||

    There are no....wait....you're just baiting me

  • Poppa Kilo||

    Well, he's a master at that.

  • AlexInCT||

    Master Baiter?

  • Almanian!||

    THAT'S THE JOKE!!! HAHAHAHAHAHAHAHAHAHAHAHA!!!!!

  • ||

    "This is the worst chat room EVER"

    You were saying?

  • plusafdotcom||

    and their comment really improved that situation, too, right?
    :)

  • Zeb||

    Well, I suppose they could ban abortions that happen in moving vehicles as they cross state lines. And perhaps in DC and national parks.
    Except for that whole Roe V. Wade thing.

  • Paul.||

    If they MIGHT do that, it's a valid interpretation of the commerce clause, according those who have consistently held an expansive view of said clause. They know who they are.

  • Hank Phillips||

    When Roe v. Wade emerged out of the LP platform there weren't 4 billion people. Today there are 7 billion, and the 2nd derivative only changes signs in the early sixties. Doesn't population biology have something to do with... what's the word... life?

  • WTF||

    If you go by precedent, the commerce clause probably does provide as much justification for this legislation as it does for all the other bullshit the fedgov does. So I guess the argument here is that while the left gets away with outrageous intrusions on liberty and expansion of government power for their pet projects, the right should be principled and not play by those same rules the left uses to get whatever they want. Doesn't seem like a winning argument.

  • Bo Cara Esq.||

    Yeah, screw principles!

  • rocks||

    Apparently you are too blind to see that if your side breaks constitutional protections and principles and enables the government to do things that is it not allowed to do but you condone because you want them, that the other team will at some point do the same.

    From your reply, you apparently agree that the left should be able to get away with intrusions on liberty, but the right should be principled. and be forced to play by a more narrow set of rules. That is disturbing to say the least. You either have both be principled or neither. The left and you choose neither, so don't whine now.

  • Michael Ejercito||

    So true. The Supreme Court already settled the matter.

  • Michael Ejercito||

    So true. The Supreme Court already settled the matter.

  • Dweebston||

    Or perhaps the left finally recognizes how absurdly overread the commerce clause is. Not bloody likely, though. They're licking their chops at the thought of another inevitable public dicktripping festival hosted by conservatives.

  • Bo Cara Esq.||

    It's not the left calling the GOP out here, it's libertarians like Adler, Reynolds and Reason. The left normally loves broad readings of the CC, that's part of the point: the GOP is acting like the left here because, Baby Holocaust!

  • ||

    "Baby Holocaust!"

    Honestly that isn't even a GOP thing any more. As contraception and pregnancy detection become easier and cheaper the public's view on later term abortions become more and more negative.

    I suspect the legal window for abortion to shrink moving forward.

    It isn't even a religious thing really. There are plenty of secular people who have problems with how meat is made. It seems logical if they can empathise with the pain chickens have they can empathise with glob of cells with a growing human nervous system and given only a few months will be a human.

  • Win Bear||

    As contraception and pregnancy detection become easier and cheaper the public's view on later term abortions become more and more negative.

    Late term abortions have always been infrequent and have never been a serious practical issue.

    Furthermore, there are many things that I consider morally wrong and objectionable that I think nevertheless ought not to be restricted by the federal government.

  • PM||

    Late term abortions have always been infrequent and have never been a serious practical issue.

    Until it's time to go into hysterics because GET OUT OF MY VAGINA.

  • Win Bear||

    The hysterics are on both sides. It's a way of rallying the faithful for both progressives and social conservatives over an issue that simply doesn't matter either way.

  • plusafdotcom||

    re: " It seems logical if they can empathise with the pain chickens have they can empathise with glob of cells with a growing human nervous system and given only a few months will be a human."

    Sorry, fail.... unless you can specify EXACTLY when the glob of cells crosses that "human" threshold, right? Good luck on that, too...

  • Zeb||

    the right should be principled and not play by those same rules the left uses to get whatever they want

    If they want any claim to being principled, then yes they should. Two wrongs don't make a right. Especially when the ways that the Republicans want to abuse the commerce clause do nothing to reverse the outrageous ways the Democrats have abused it.

  • WTF||

    The TEAMs are interested in winning; if one side uses what has essentially become a cheat code to advance their agenda, the other side would be rather foolish to not follow suit. And if they do follow suit, maybe the other side will, just maybe, hopefully, start to see why using the cheat code is wrong and can be bad for them as well. And maybe then the bullshit can at least start to be considered for rollback. But to claim one side should just refuse to take advantage of the same tools the other side uses against them is a losing argument. Principles won't get you very far if your opponent is free to discard them when fighting you.

  • Dweebston||

    Why should I care what libertarians with whom I already agree say about a topic we share in contempt? Of course the commerce clause is an abominable mitigation of constitutional constraints used in outlandish interpretations to effect illimitable restraints of liberty. I don't need convincing on those grounds to oppose the bill. And nonetheless I would almost, almost like to see it brought to a vote if only to twist the knife against Democrats for once. But even that is moot since they will greet it with the standard war on women diversion and any actual legal analysis will be handwaving yes, but excuses.

  • Dweebston||

    Meant that for Bo, but Zeb got in the way.

  • HolgerDanske||

    Maybe it would be possible for the right to create a piece of legislation that highlights this, but in no way is susceptible to the usual hashtag and soundbite diversions?

    The left plays these kinds of political games all the time, where they will propose legislation that will never pass, but is clearly designed to make their opponents look like inconsistent weasels. It shouldn't be too difficult to do the opposite while minimizing the potential fallout.

    Simply propose something the left claims to be for, but would never actually advance for various reasons. Like taking government completely out of the marriage question, with the implied acceptance of marriage for all as bait. Take a risk and oppose the hypocrisy.

  • HolgerDanske||

    Expose the hypocrisy, not oppose. Well, both I guess.

  • Mickey Rat||

    "Rhaegar fought bravely, Rhaegar fought honorably, and Rhaegar died."

  • Zeb||

    Yeah, but no one here is being brave or honorable, so fuck 'em.

  • Plàya Manhattan.||

    Hmmm. People are just now discovering that the commerce clause has been usurped?

    Color me shocked.

  • Bo Cara Esq.||

    If you'll stop carrying water you might see a slight distinction, like the side invoking the broad reading of it is kind of the same side that has long decried such readings as usurpations. And they're being called on it by those who've always agreed with those cries of usurpation.

  • Paul.||

    We didn't vote for them either.

  • Sudden||

    It's worth noting that perhaps the entire point of the legislation is less to ban abortion but to compel the Left leaning justices of the courts to begin dialing back the expansive commerce clause interpretation in order to preserve the Left's sacred shibboleth of infanticide.

  • SugarFree||

    Sorry, Sudden, but that's horseshit.

    If it was this one action, maybe you could be right, but the GOP has been trying to regulate abortion out of existence too much on the state level for this to hold water.

  • Paul.||

    Yeah, this isn't a clever strategic move by the GOP. But it does make DAMN fine fodder pointing out the fallacy of expansive commerce clause interpretations.

  • SugarFree||

    But it won't be taken as such, it will be WAR ON WOMEN and the obsessed GOP handed Hillary a cudgel to beat them with.

  • Sudden||

    While perhaps unintentional then, at least it provides the possibility for the courts to begin narrowing the scope of CC jurisprudence. You know damn well that the Ginsbergs and Sotomayors of the world will do whatever it takes to preserve broadly available abortions.

  • SugarFree||

    But it's moot. Obama will veto the hell out of this and the media will tongue his taint for it.

  • ||

    Nah..

    The Republicans just set up their own win-win scenario. Why is that difficult to understand?

    ....

    I mean other then the fact that they are otherwise completely incompetent.

  • plusafdotcom||

    Sudden... help me understand the differentiation, ok? I thought you had to be BORN first in order to be considered an 'infant.'

    So how can abortion be considered 'infanticide'?!

    Huh?

  • Bill Dalasio||

    In principle, I fail to see where this is a federal issue. However, I have to admit that Bo's salty tears of rage at something he's been quite tolerant of on a host of other issues is a pretty convincing argument in the bill's favor.

  • ||

    "If you'll stop carrying water"

    Playa is a woman...this thread is about abortion...

    There is a joke here I just know it!!

  • UnCivilServant||

    Playa is a woman

    I have it on good authority that this is an impossibility.

  • ||

    Perhaps that's true, but it still doesn't address this:

    "There is a joke here I just know it!!"

  • plusafdotcom||

    ... something to do with 'water breaking'?

  • ||

    Let's lighten things up and talk about abortion.

  • ||

    Megan: Hey, you're really hardcore, aren't you?

    Mac: Oh, well, you know. I mean, if you really wanna see hardcore... (hands her a piece of paper)

    Megan: What's this?

    Mac: That’s the list of doctors I'm gonna kill.

    Megan: There's two already crossed out.

    Mac: Yeah, I know.

  • ||

    Dee Reynolds: You're gonna throw away all your convictions for a chance to get laid?

    Dennis Reynolds: I don't really have any convictions.

  • ||

    Charlie: I mean, I wish I could go back in time and do the right thing, you know?

    Dee: Like be there for him?

    Charlie: No, get an abortion.

  • MJGreen||

    You remember Genesis? Book two, verse three: And he breatheth into the nostrils of Adam on the first day and it was good.

  • Rich||

    The U.S. House of Representatives yesterday passed a bill that would ban abortion after five months pregnancy throughout America.

    The Stupid Party strikes again!

  • The Late P Brooks||

    Aaaaand, THEY'RE OFF!

  • Swiss Servator, Switzier!||

    All this AND a Richman article.

  • ||

    This thread gave me cancer/AIDS/some terrible tropical disease where your skin falls off, and a nervous tic.

  • UnCivilServant||

    some terrible tropical disease where your skin falls off

    That would be the ebolaherpes.

  • From the Tundra||

    Did your dick fly off? Cause then it's the Gluten-free Ebola.

  • ||

    MEGA-AIDS

  • Mickey Rat||

    ...and all of a sudden the commerce clause is a narrow insrument that should not spply to this one area that leftists like. Seeing them tie themselves in logical pretzels trying to justify why Congress has no authority ovet abortion but does over the purchase of health insurance and growing wheat for your own use will be amusing as hell.

  • Bo Cara Esq.||

    Adler and Reynolds are kind of opposed to both this law and the ACA.

    It's interesting how repetitive and yet irrelevant this deflection line is. The GOP must be defended at all cost of integrity or sense!

  • Mickey Rat||

    I simply stated that there is amusement value in forcing the pro-aborts to argue a minimal commerce clause interpretation in order to protect what they hold sacred. Sorry, libertarians on that side are hopelessly outnumbered by the progs.

    Sorry to trigger your enormous anxiety about anyone ever siding with Republicans. Do you need a blankie and warm cup of milk to soothe your stress?

  • Paul.||

    Is there any evidence that Reynolds and Alder are the only people concerned with this ruling? There's no possibility that an entire political philosophy that has repeatedly called for an expansive reading of the commerce clause might also have the same problem with this ruling that Reynolds has?

  • RoninX||

    All of a sudden? You do realize this is a libertarian website, right?

  • Xeones||

    An abortion post AND a Richman post, on a Thursday? Hoo boy.

  • Plàya Manhattan.||

    My poor liver!

  • Xeones||

    I'm'a have to take tomorrow off.

  • Almanian!||

    Isn't one generation of Botox enough too much? #TFT

  • Grand Moff Serious Man||

    Without commenting on the issue itself, I am amused that yesterday Hillary Clinton launched a Twitterstorm of opposition to this bill despite not actually using the word 'abortion' once.

    It was like a contest to see who can come up with the most euphemisms for aborting a fetus.

  • Rich||

    Ooh, ooh! What did she call it?

  • Rich||

  • Grand Moff Serious Man||

    Variously a private medical decision between a woman and her doctor, a woman's health issue, and a personal choice.

    Out of context she could have been talking about anything.

  • Swiss Servator, Switzier!||

    Like health insurance you want, but the Feds have outlawed?

  • Raston Bot||

    No, see that's different. It's different. Don't you understand it's different? I just explained to you that it's different. You're obviously a racist.

  • ||

    Given that this has absolutely zero chance of making it into law, I see absolutely no reason to freak out.

    This is just another way for the Republicans to pander to social cons on abortion without actually doing anything about abortion. The Supreme Court has made it dclear they have no intention of overturning Roe v. Wade any time in the near future. If they *really* wanted to ban abortion they would be pushing a constitutional amendment, not a bill they know will be blocked in the Senate, vetoed, and overturned by SCOTUS, if it ever got that far.

  • sarcasmic||

    Yeah. What HM said.

  • ||

    It will absolutely get fillibustered/vetoed. But overturned by the Nazgul, color me skeptical. The SC is much more hesitant to overturn federal laws than state laws because commerce clause/N&Pclause;/ FYTW.

  • Sudden||

    I believe it would be overturned by the Nozgul under the strangest of alliances: Ginsberg, Sotomayor, Kagam, Thomas, and Kennedy. Possibly Breyer.

  • Restoras, OWG||

    So far, so good...

  • Raston Bot||

    Hey, look! An expansive interpretation of the Commerce Clause.

    Who didn't see this coming?

  • JW||

    The federal government, after all, is a government of limited and enumerated powers.

    How quaint.

    Live by the Commerce Clause, die by the Commerce Clause.

    Suck it up, Obamacare pimps.

  • Michael Ejercito||

    So true.

  • JW||

    known as the "Pain Capable Unborn Child Protection Act," or PUCPA

    We leave off the extra 'C' for savings childbirth.

  • Paul.||

    The U.S. House of Representatives yesterday passed a bill that would ban abortion after five months pregnancy throughout America. It has no legal authority to do so.

    Bullshit. Bullshit. it does. Progressives have repeatedly, loudly and with force of conviction told me that in fact Congress DOES have this authority because of the commerce clause.

    Live by the commerce clause, die by the commerce clause.

  • bassjoe||

    Ah, I was waiting for somebody to say "but but the progressives do it" to justify this. Though this comment admittedly seems cynical...

  • Michael Ejercito||

    The problem is, the Supreme Court upheld laws supported by the progressives on a broad interpretation of the commerce clause.

  • Michael Ejercito||

    The problem is, the Supreme Court upheld laws supported by the progressives on a broad interpretation of the commerce clause.

  • tz||

    I believe in the Constitution, but since it has become both a living document and dead letter, I also don't believe in unilateral disarmament when it comes to political matters.

    The Supreme court is not the Pope speaking Dogma from the chair of Peter.

    The Supreme Court itself gave us "The butterfly effect" interpretation of the commerce clause. If a farmer, grinding his own grain he grew in his own house is subject to regulation, Abortion certainly is.

    Both or neither.

    Where is anything concerning Marriage in the constitution?

    Ah, the 4th amendment "right to privacy" which is the Cheshire Cat from Griswold v. Connecticut. NSA and the rest of surveillance is somehow NOT subject to the 4th - including Civil Forfeiture, the IRS and other financial transactions, Gun registration, and you could probably list more than I can.

    So the 4th Amendment only protects Abortion and Contraception. Nothing else?

    If we have a crazy, bizzaro world Federal Judiciary, then I'm not so bothered about the other two branches.

    (Should I even bother to mention Executive Orders?)

    Your arguments might be absolutely correct, but just like the "tax protesters", the Federal Government dismisses them.

  • Paul.||

    Republican state legislatures have been using exactly the sort of onerous, retroactive regulations on medical providers they Democrats would decry enthusiaistically support in any other context to try and shut down abortion clinics in states across the country," wrote Gillespie.
  • RoninX||

    Both versions are correct.

  • ||

    " As with murder, it’s a matter generally left to the states."

    Not since Row v.Wade. It's now a federal issue unfortunately(along with about a million other things)

  • Xeones||

    Row v. Wade? So you're John now?

  • american socialist||

    I think anyone getting an abortion, including anyone taking a pill after they got raped at a frat house (the latter example is, of course, ridiculous in more ways than one, right?) is guilty of first-degree murder and should be drawn-and-quartered at sunrise in a public square.

    "Commerce clause"

    Is every word written around here dedicated to the principle that the government should just stop harassing mega corporations who dump their shit everywhere and expect taxpayers to clean it up. Hey ENB, you promote yourself as some kind of post-modern feminist. Why not just stand on the principle that government should not be involved in any discussion you may or may not have with your gynecologist and leave it at that? I think you are on way firmer ground making that argument than the one you and nick Gillespie cribbed from the right-wing blogosphere.

  • From the Tundra||

    D-

    Tired material. Edit and try again later.

  • Paul.||

    Why not just stand on the principle that government should not be involved in any discussion you may or may not have with your gynecologist and leave it at that?

    I can get behind this. Perhaps remove government involvement in the patient/physician relationship altogether?

  • Hank Phillips||

    The commies have the income tax plank; the prohibition party has the dry plank and both infiltrated the Constitution. The LP is formed around something Ayn Rand penned in 1947 (Letters, p. 366). So why not take her 1957 amendment and push for it?

    "And Congress shall make no law abridging the freedom of production and trade."

    Stick that in your commerce clause and smoke it!

  • SugarFree||

    Oh, look... more gibberish.

  • ||

    GARBLE BLARG BLEEP BLOOP MARRRRR HRUMPH DAAAAAAA

    Understand now, NutraSweet?

  • SugarFree||

    Ah, yes. There it is.

  • Plàya Manhattan.||

    Curse those mega corporations!!!

  • SugarFree||

    The commerce clause is MAGIC!

  • OldMexican||

    Re: American Stolid,

    I think anyone getting an abortion, including anyone taking a pill after they got raped at a frat house [...] is guilty of first-degree murder and should be drawn-and-quartered at sunrise in a public square.


    I prefer public shaming and shunning but I guess Socialists have this murderous side that needs to be catered, so whatevs, dude.

    Is every word written around here dedicated to the principle that the government should just stop harassing mega corporations who dump their shit everywhere[...]


    You mean like in Lake Karachay?
    Oh, right - Socialists are so environmentally-conscious. Silly me.

  • DEATFBIRSECIA||

    Interesting, from the Wikipedia article on the Mayak disaster:

    According to Gyorgy,[17] who invoked the Freedom of Information Act to gain access to the relevant Central Intelligence Agency (CIA) files, the CIA knew of the 1957 Mayak accident since 1959, but kept it secret to prevent adverse consequences for the fledgling American nuclear industry.[18] Starting in 1989 the Soviet government gradually declassified documents pertaining to the disaster.[19][20]

  • Drake||

    I agree with the article. I would also agree if the same article was written about Rowe v. Wade and the Supreme Court.

    Let the States do it.

  • OldMexican||

    Congress Has No Authority to Pass a Federal Abortion Ban


    And the SCOTUS had no authority to strike down a state's abortion ban law on 14th Amendment grounds, if we want to be strict regarding federal power.

    Just as there is no constitutional basis upon which Congress could enact a general law against murder, there is no clear constitutional basis for a prohibition or regulation of abortion. As with murder, it’s a matter generally left to the states.


    Indeed. However, you have defenders of Roe v. Wade alleging abortion was made legal because of the equal protection clause in the constitution, even when the clause itself mentions nothing about creating rights out of nothing and thus proceed to protect them from the encroachment by the states.

  • FreeRadical||

    Abortion is one of my most difficult issues. But, regardless of my own thinking on it, I have always thought that the 14th Amendment provides a vector of Federal authority depending on definitions.

    The Equal Protection Clause definitely applies to murder, or any other state criminal law. That is, if a state has a law against murdering people, but allows murdering people with red hair, then the red-haired people have an equal protection case they can bring to the feds. And, they would obviously win.

    Now, if at some point you believe that a fetus becomes a person, and the state in which the fetus exists has an anti-murder law, then the fetuses (or their proxies) have an action that can be taken with the feds.

    This would be a proper invocation of the 14th. Of course the problem is the definition of "person". And, that is the really hard question wrt to a fetus in the womb.

  • OldMexican||

    Re: Free Radical,

    Of course the problem is the definition of "person". And, that is the really hard question wrt to a fetus in the womb.


    Do you really need a definition of a person? Can't you recognize the person who made those words? If you're a person, doesn't it follow that someone like you - for instance, a baby human - has to be a person, too? Either a thing IS, or it is NOT. And if it is NOT, then like things should NOT be, too. Either YOU and a baby human are PERSONS, or both of you are NOT. A woman does not beget a thing.

  • FreeRadical||

    OM, I was trying to not bring my own opinions into it, but merely to state some legal thoughts.

    Laws sometimes have to have a definition of person in them for their operation. That is the kind of definition I am talking about.

    I am also stating that if a fetus is person, then the federal government has authority via the 14th to ban abortion in every state with an anti-murder law, which of course is every state.

  • Stormy Dragon||

    Is a corpse a person too?

  • ||

    Did your parents have any children that lived?

  • sarcasmic||

    Why don't you kill yourself and find out?

  • cavalier973||

    Thank Darwin we still have the freedom in this country to murder corpses.

  • HolgerDanske||

    Stormy: C-

    Next time, try "brain-dead and on life support".

  • RoninX||

    Yeah, that's a reasonable argument -- much more so than "The Commerce Clause allows us to do anything!"

  • Hank Phillips||

    Doesn't the 14th Amendment say "All persons born..."
    Hard to see how this makes a pregnant woman something other than an individual. Of course if pregnant women could be redefined to suit mystics, their individual rights could be stripped away pretty easily.
    Insisting that all three participants (or four or five, if carrying twins or triplets) say "I do" would handily do away with pregnant heterosexual marriages. Or if age is a big issue, then on reaching legal age a child could sue to divorce the father or annul its share of the marriage, maybe claim alimony. Or as long as group marriage is legalized by fiat, the Old-Time Mormons (and maybe Branch Davidians) could at last be left alone in Texas, the way Joseph Smith wanted.

  • Francisco d'Anconia||

    Those stupid, old, white, rich slave owners. They took years, traveling thousands of miles back and forth to conventions to compose a document that limited the powers of government so they could include a clause that makes the government omnipotent.

  • bassjoe||

    Whatever. As evidenced by this vote, most Republicans only believe in "limited federal government" when it suits their political interests (to attack Obamacare, same-sex marriage, most environmental and labor regulations, etc.). They're more than willing to dump this "principle" if an expansive reading of the US Constitution is politically expedient.

    Another beautiful example of this blatant hypocrisy: the Republican-controlled states neighboring Colorado suing to overturn Colorado's marijuana legalization based on such an expansive reading of federal power it will make the strongest Obamacare supporters' blush... literally months after arguing that Obamacare was an overreach of federal power.

  • Michael Ejercito||

    Tjhe problem is that the Supreme Court endorsed the near limitless interpretation of the commerce clause. TYhere is no limited federal government, according to the Supreme Court.

  • HeteroPatriarch||

    But what about federal control of circumcisions?

    /runs

  • ace_m82||

    I just read through all the comments here and I think only a few points were the actual abortion debate. Because this article was about Federal authority, and not on the issue itself, I have to applaud the lot of you.

  • FreeRadical||

    Abortion is a hard issue, and it's nearly impossible to have a discussion even remotely related to it without emotional investments getting in the way of critical thinking. So, yeah, it's pretty rare to have a calm discussion about it. I think libertarians are better at this kind of thing than people of other stripes.

  • ace_m82||

    I've engaged in these discussions, and I'm pretty well practiced at divorcing my emotions from logic. If libertarians are better than most, I'd hate to see what bad looks like...

    I'm glad I don't argue on many other portions of the internet.

  • Notorious G.K.C.||

    Here's the bill's citation of constitutional authority:

    "(14) Congress has authority to extend protection to pain-capable unborn children under the Supreme Court's Commerce Clause precedents and under the Constitution's grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment."

    (congress.gov)

    http://ow.ly/MXClb

    So there's an independent basis for passing this law even if the Commerce Clause is out of the picture. Listing the Commerce Clause only gives lefties the chance to concern-troll about federalism, a cause they support soooo strongly.

  • ThomasD||

    If you care about Constitutional governance Roe V. Wade should already have you well and truly freaked out.

    This is merely corollary.

  • Robert||

    The last time they tried (with a partial-birth abortion ban), the act said it applied to persons acting in or affecting interstate commerce. In other words, they left that determination to each individual case as a fact to be established at trial. That language is in a lot of federal statutes, has been for decades. Only in a few do they assert the sort of thing as in the CSA or FIFRA, i.e. that Congress has that power regardless of whether an individual instance affects interstate commerce.

  • AlgerHiss||

    A woman isn't a real woman until she has at least 3 abortions under her belt.

    Does Planned Parenthood have gift certificates for abortions?

  • AD-RtR/OS!||

    SCOTUS gave them that authority when they made abortion a national issue under "Roe".

  • RoninX||

    Wow. No, it didn't. No more than than the Heller decision gave the feds the right to ban guns.

  • retiredfire||

    It would seem that, since SCOTUS decided they could make abortion legal, nationwide, then it has become a national issue that Congress can address.
    Article 3, Section 2 says, in part "... the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make".
    Could this be Congress making a regulation affecting what the Supremes have done?
    Maybe the Republicans, Alder, Reynolds and ENB should go through the entire document, it is quite illuminating.

  • Hank Phillips||

    Good catch! So we can become an Islamic State after all, Congress and Allah willing. The population clock shows a net gain of almost 32 million in population each year (not quite 87000 a day). I guess that's nowhere near enough to make the competition for resources a challenge.

  • SomebodySmart||

    If you're pro-life then also don't raise any fuss with the local planning board when somebody wants to open a home for girls in unplanned pregnancies.

  • Fabi||

    Perhaps a change of monikers is indicated.

  • PM||

    Just as there is no constitutional basis upon which Congress could enact a general law against murder, there is no clear constitutional basis for a prohibition or regulation of abortion. As with murder, it’s a matter generally left to the states.

    Of course, murder is, in point of fact, a federal crime in an astonishingly wide range of circumstances - including, for example, murder-for-hire that takes place entirely within the borders of one state. Nobody shits their pants over that though.

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  • HenryC||

    if Congress decides to declare an fetus five months of age a human having the rights of a citizen, they do have the rights to pass the ban.The constitution does not set the age of when someone becomes human, prebirth or not. It would totally overthrow Roe vs. Wade if the fetus was declare human. When does that happen? I don't really know, and neither does anyone else. However, the laws does not require that.

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  • Hank Phillips||

    "Legal authority? We don' need no steenkin' legal authority!" Thus spake God's Own Party.
    The Rand Paul, Jeb Bush and Ted Cruz political party has BAN ABORTION in big letters in its platform. George Bush explicitly declared his intention to overturn Roe v. Wade. What with only 31 million people a year added to the net population, how else are we going to get children young enough to brainwash into Republican religious fanatics?

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