Opinion: Why Codified Law Returns to the Supreme Court

Now there is Senate votes too few Pass such a law. But that could change if the Democrats turn over one or two seats with a senator who supports keeping all seats in the Senate and abolishing filibuster. Of course, politics can go in the opposite direction. If Republicans support the House of Representatives and the Senate, some can expect to promote a national ban on abortion.

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.

It’s the matter of those who say the court is simply returning this issue to the people. In any case, if Congress tries to pass the law, it could come back to the judge’s lap. The Supreme Court retains the power to overturn people’s will, as expressed in parliamentary action. That is the meaning of the power of judicial review. To quote the most famous case in the Constitution, Marbury v. MadisonThat is, the court “says what the law is.”

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.

For example, when Congress tried to dismiss Miranda vs. Arizona in 2000, the court said Dickerson vs United States: “Parliament cannot legally replace our decision to interpret and apply the Constitution.” Three years ago, they said the same thing. City of Berne v.Flores: “Parliament does not enforce rights by changing what they are. [Congress] There is no power to determine what constitutes a constitutional violation. In short, the moment Roe’s codification was signed by the President, it was challenged as unconstitutional and we can return to where we started in the Supreme Court.
Current codification bill, Women’s Health Protection Act, Parliament has power over “commerce” and is based in part on the theory that abortion involves commerce. However, this argument has its weaknesses. First, the court, not the parliament, ultimately decides what a commercial transaction is.
Even when Congress created an incredibly strong fact record of commercial ties, the courts have found it appropriate to deny it. In the case of 2000 United States vs. MorrisonThe Supreme Court said that sexual assault is not a commercial transaction, and therefore domestic economic law that allows survivors to sue attackers is unconstitutional-despite the “mountain of data” showing. figure Link between Women’s economic outlook and gender-based violence.

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.

Third, Dobbs said,Fetal life“Constitutional interests, the laws that extinguish those constitutional interests, can be considered fatally inconsistent with Dobbs itself.
Indeed, there are counterarguments and precedents that show that Congress has broad authority to regulate markets and health care, but the exact same courts that want to send abortion to the state have been in the 1990s since the abortion. We have reduced women’s rights and the power of parliament to protect women. Based on the constitution Congress to pass an affordable care law, former President Barack Obama’s health insurance program.
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Some may think that the Equal Protection Clause of the Fourteenth Amendment should help.The late Supreme Court judge Ruth Bader Ginsburg said the issue of abortion was One of equalityNot a right to privacy.
However, over the last two decades, the Supreme Court has created a set of rules that limit Congress’s ability to provide relief for violations of the Fourteenth Amendment. All the laws passed by Congress are “Joint and proportional“In violation of the Constitution.
To make matters worse, Dobbs says women have There is no equal interest A procedure applicable only to women, resurrecting the Supreme Court’s highly critical refusal Geduldig vs Aiello Pregnancy discrimination is considered unconstitutional.

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?

Opinion: Roe was very bad for America.The court gives us the opportunity to reset

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.

Source: www.cnn.com

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