However, there is a problem in thinking that federal law will solve this problem and prevent abortion from returning to the Supreme Court under the Constitution. Even if Congress passes a law codifying the Roe v. Wade case, it does not mean that the Supreme Court of Dobbs, which has broken the precedent, does not have five votes to strike the new law.
The federal Roe-protected draftsman must not be a starry sky. First of all, people should stop using the term “codified egg”. This phrase can be misleading. Statutoryization in this case means establishing the right to statutory law, which is possible, but the term “Roe” refers to the Supreme Court’s decision, and Congress overturns the decision of a particular Supreme Court. , Do not have the authority to revive the overturned case.
Second, if abortion is a crime claimed by opponents, Morrison’s reasoning applies, except for parliamentary action. Morrison modified the court’s old liberal commerce analysis-Parliament was able to legislate even those vaguely related to commerce-and banned Congress from engaging in local non-economic activities. .. Just as Morrison’s court described a gender-based attack as a crime, a court devoted to defeating Congress’s ability to recover Law described abortion in uneconomical terms as an attack on fetal life. can. At that point, the downstream “impact” on women and national commerce is not important to constitutional issues.
Sad but true: The Constitution does not give the company the right to dismiss you because you are pregnant. That right exists only for Congress, and because the right focused on commerce. Who knew that commodities received more federal equality protection than women, which is essentially what Dobbs holds.
Some may say that this is okay. If Congress cannot codify Law, it cannot impose a national abortion ban. But that does not come from the existing Supreme Court case law. Depending on how the law is drafted, courts can invalidate Roe’s codification and uphold the country’s abortion ban. How?
Since the Supreme Court can decide on constitutional issues, the Supreme Court may invalidate Roe’s codification. On the other hand, if a country’s ban is written in the right way, it can survive the attack and find a simple home within the commerce clause. Such bans focus on commerce-except for abortion or uncompensated abortion service payments. The law is more focused on commerce than the current Roe codification bill.
Is there an answer to this for Roe codification proponents? yes. Very careful drafting, Senate and House hearing rafts, and clear ideas about opponents. The bill cannot be said to be changing the Constitution and cannot rely on the term “right to abortion”. After Dobbs, there is nothing.
Drafts need to focus on words that are already endorsed under the commerce clause, which includes the regulation of medical procedures. In fact, we need to include words that specifically reject Morrison’s narrow analysis. “Abortion is an economic activity and Congress admits that it cannot be reduced to operations or assaults.”
A hearing should be held to provide a factual basis for the relationship between commerce and abortion.
Members need to emphasize why women’s real life has constitutional protection that transcends the constitutional protection of potential life. They refute Dobbs’s analysis of the Fourteenth Amendment’s Equal Protection Clause, where women are equal “citizens” under the “citizenship” clause of the amendment, empowering women to make medical decisions. It must be made clear that denying violates the fix.
They should write in the bill a statement calling for the “privilege and exemption” clauses of the 14th and 9th Amendments, which the majority of Dobbs did not cover. These texts may uphold the right to abortion. They should refute the various originalist arguments made in the opinion of unstable history.
Conclusion: Courts are definitely not “out of the box” from abortion projects. It’s just getting started.