I've gotten several emails (three actually) asking me to talk about what overturning Roe will mean. So here goes.
Let's start with the legal part first because that's causing the most confusion.
Whatever your views on abortion, Roe was a terrible legal decision. It was premised on nothing more than the desire of the court to find a new right. They relied on social science data and politics in the decision, rather than legal precedent, and they invented the right not from anything written in the constitution itself (like "Congress shall not...") but from the "penumbra" of the constitution -- the glow of the whole thing. It's true. Not making that up. Total bullship, legally speaking.
So what happens if they strike Roe down? Does abortion become legal or illegal? Yes, but not like you think.
What Roe does now is create a legal right to abortion requiring that it remain legal to some extent. That means the states and/or Congress cannot flat out ban it. To what extent it can be blocked or regulated is what all the cases since Roe have been about. You can do this, but not that, etc. etc. If you remove Roe, that right disappears and abortion becomes a question for the legislature. Until the legislature speaks, however, it actually becomes legal because things are not presumptively outlawed in our system until they are made illegal.
But then it can be made illegal, right? Sure.
Buuuut, if you want to know how this plays out, it's not going to be made illegal. First, there are only a couple southern states which will actually ban abortion. I count Mississippi and Alabama. Georgia and Texas (maybe a couple more) will probably add some regulations, but that's about it. Places like California and Maryland, on the other hand, will allow abortion on demand until birth. Most every other state will most likely pass laws keeping things as they are right now. So expect illegal in two states, legal in 48 with a couple SUPER legal. As for the people in the illegal states, they will be able to travel to any number of other states to get the procedure done. Stopping them will violation equal protection laws. So realistically, no one will be stopped.
Then it gets ugly. The next time the Democrats hold the Congress and the White House (like now), they will be able to pass an abortion law that prevents the states from passing their own laws -- undoing every state's laws. When Congress speaks, the states cannot. What will they pass? Well, odds are good they would pass the California version of unrestricted abortion on demand and impose it on every state. Is there a valid 10th Amendment argument against allowing that? No.
Could Republicans ban it if they got the White House and Congress? Possibly but I doubt it. The government cannot just ban things, and there are several rights in the constitution which I doubt they can overcome. They can try though.
Let's start with the legal part first because that's causing the most confusion.
Whatever your views on abortion, Roe was a terrible legal decision. It was premised on nothing more than the desire of the court to find a new right. They relied on social science data and politics in the decision, rather than legal precedent, and they invented the right not from anything written in the constitution itself (like "Congress shall not...") but from the "penumbra" of the constitution -- the glow of the whole thing. It's true. Not making that up. Total bullship, legally speaking.
So what happens if they strike Roe down? Does abortion become legal or illegal? Yes, but not like you think.
What Roe does now is create a legal right to abortion requiring that it remain legal to some extent. That means the states and/or Congress cannot flat out ban it. To what extent it can be blocked or regulated is what all the cases since Roe have been about. You can do this, but not that, etc. etc. If you remove Roe, that right disappears and abortion becomes a question for the legislature. Until the legislature speaks, however, it actually becomes legal because things are not presumptively outlawed in our system until they are made illegal.
But then it can be made illegal, right? Sure.
Buuuut, if you want to know how this plays out, it's not going to be made illegal. First, there are only a couple southern states which will actually ban abortion. I count Mississippi and Alabama. Georgia and Texas (maybe a couple more) will probably add some regulations, but that's about it. Places like California and Maryland, on the other hand, will allow abortion on demand until birth. Most every other state will most likely pass laws keeping things as they are right now. So expect illegal in two states, legal in 48 with a couple SUPER legal. As for the people in the illegal states, they will be able to travel to any number of other states to get the procedure done. Stopping them will violation equal protection laws. So realistically, no one will be stopped.
Then it gets ugly. The next time the Democrats hold the Congress and the White House (like now), they will be able to pass an abortion law that prevents the states from passing their own laws -- undoing every state's laws. When Congress speaks, the states cannot. What will they pass? Well, odds are good they would pass the California version of unrestricted abortion on demand and impose it on every state. Is there a valid 10th Amendment argument against allowing that? No.
Could Republicans ban it if they got the White House and Congress? Possibly but I doubt it. The government cannot just ban things, and there are several rights in the constitution which I doubt they can overcome. They can try though.
3 comments:
Hey Andrew. I'm personally neither here nor there when it comes to abortion... I guess I’m one of those “Safe, Legal & Rare” types that neither side of the isle is really peddling to right now.
It seems to me the best option would be to leave it to each individual state; allowing their individual population to pass abortion laws/limits how they see fit. But I doubt the federal government can keep their fingers off this issue. Either way legal issues will be brought up.
A big problem is the hyperbolic Left/Right positions on this issue. The Leftoids want abortion celebrated & legal up until birth (disgusting); while the Religious Right keeps pushing jail time for people who perform/undergo an abortion (regardless of forced inception).
Its a messy an admittedly disgusting issue that's bound to piss people off on both sides of the isles… and understandably so from my point of view.
Now that I’ve established my view on this subject; there are two things that worry me.
Taking this from a Center-Right point of view:
1. This may cause the Republicans to swing back into their Religious Right esq. politics, that tend to be authoritarian in nature. This could end the more centrist move that the Republicans have been trending toward (which would be a shame in my opinion). It seems like the Republicans have progressed quite a bit over the last few years into a better party. I would hate to see the wingnuts ruin the progress made.
2. This is going to give the wacko Leftoids the ammunition they need to get liberals behind their crap Marxists politics. Hypothetical scenarios play well to the general public… The left will exploit this with their media machine; meaning they will find any case of forced inception/birth and blast it 24/7 to prove their point about abortion needing to be legal & readily available. The left/media will also bury all the disgusting leftoids that celebrate abortion & want it legal up until birth. To top it off their will be corporate interest in keeping a steady stream of aborted fetus’s for research purposes. That last sentence sounds like a right wing conspiracy however there is in fact some truth to it. With those concerns stated, I really have no solution in mind. This is one of those hot button issues that tends to send even rational people off into a furry.
Btw Andrew, I read the comment that was posted on your last article before you deleted it. That was the exact hyperbolic response I spoke of earlier. Its hard to have a discussion with someone that thinks your evil, when all you did was point out what will happen. Both sides of the isles really do get “cultish” over abortion. Keep in mind I still believe the majority of people can see that there are good arguments for and against abortion.
-Kyle
Hi Kyle, Yeah, kind of hard to talk to whackos like that, so I don't even bother.
I agree across the board. I was in DC in the 1990s and was on the edges of a lot of politics. I can tell you that the Religious Right made the GOP brand poison... and. they. did. not. care. They had a martyr complex combined with delusions that people were secretly with them. They were utterly immune to facts or logic or any discussion of some plan other than self-immolation. Sadly, I think this decision will revive those people.
Also agree about the left. They have crazies on this issue too, but they are well hidden by the media.
Corporate America is dystopian at this point, and there is truth to a lot of what people claim about them... most probably.
On abortion, the truly stupid part of this is that the public has settled the issue. When you look beyond the labels of pro-life and pro-choice (which advocates use to pretend the country is split), what you see is that 80% of the public agrees on legal, distasteful, safe, rare. It's only the other 20% who think this is something people still want to talk about.
As for my views, I am generally pro-life, and I find the left's view that abortion should be available right up to birth for any reason rather sickening, and the idea I should pay for it is an outrage. That said, as a lawyer in some sh*tty places, I have seen more than my share of pregnant 13 year olds who got raped by family members and I think that claiming that these kids need to be forced to carry the pregnancy to term is frankly sick. I don't like abortion, but I see that sometimes it is necessary.
What's more, I don't think the government should be making this decision. The government sucks at moral decisions because it doesn't have a head, a heart or a soul. It is a machine. A machine with tremendous power which can be ill-used by whatever asshole has enough votes at the moment. A machine like that can never get complex issues of right and wrong right, and we should not trust it nor should we encourage it to try. Let people who know the facts of each case make the decision and, if you like, try to make people understand why they should agree with you. If you can't win people over, then why do you think trying to force them makes sense?
John, I responded to your email but I used a different email because my normal one isn't sending. If you didn't get it, please let me know.
Post a Comment