Can Congress pass a national abortion bill?

The New Neo Posted on by

Now that The Great SCOTUS Leak has occurred, there’s even more talk than before about Congress passing some sort of national abortion bill. But if that were to happen, would such a bill be constitutional?

“Constitutional” seems to be a quaint word these days, because part of the purpose of the leak was to undermine the Court’s decisions and credibility in general by intimidation and propaganda, and it’s the Court that would be ruling on such legislation’s constitutionality.

The purpose of this Dodd decision leak becomes more and more clear as we watch the Democrats’ propagandist rhetoric around it: it means that the GOP is going to ban contraception, interracial marriage, gay children in the school system, whatever lie that the left believes will serve to inflame their base and even frighten people in the middle who don’t know any better.

Here’s an article that attempts to deal with the constitutional issue:

Democrats in Congress are calling on their colleagues to “codify Roe” in federal law. The Women’s Health Protection Act (WHPA) introduced by Rep. Judy Chu (D-Calif.) in June 2021 would do just that. Here’s what you need to know.

The WHPA announces as its purpose “to put an end to harmful restrictions, to federally protect access to abortion services for everyone regardless of where they live, and to protect the ability of health care providers to provide these services in a safe and accessible manner.”…

This time around, Congress would again define access to abortion as a case of interstate commerce. People travel across state lines to procure abortion services; medical equipment that provide abortions all moves in interstate commerce; and licensing, training and education for abortion providers all involve interstate travel and commerce. Proponents hope that by codifying Roe in this way, a new federal law guaranteeing the right to abortion would survive the Supreme Court’s inevitable review.

Unfortunately for proponents, the Supreme Court has become much, much more conservative since 1964. As I detail in “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution,” Congress’s commerce power has been one of the primary targets of a conservative legal movement eager to limit the regulatory scope and power of the federal government…[a discussion of a number of such decisions follows]…

With these negative Commerce Clause decisions and an even more conservative Supreme Court supermajority installed for the foreseeable future, it is likely that the same five justices who appear poised to overrule Roe v. Wade would find reason to strike down the Women’s Health Protection Act as exceeding Congress’s power.

To me it’s clear that it would exceed Congress’s power, but that doesn’t stop the left from trying, or from arguing that it is well within Congress’s power to regulate interstate commerce. That argument can be used to federalize almost anything, which was certainly not the Founders’ intent. If a woman is not barred from traveling from one state to another for an abortion, how can the interstate commerce clause be used to force every single state to legalize something that is not otherwise in Congress’s power to legalize or to ban?

Please note what I added there: “or to ban.” Similarly, a conservative Congress could not ban abortion in every state, for exactly the same reason. Abortion is not illegal now and any state can legalize it to its heart’s content if Roe is repealed.

Making abortion available nationwide, in every single state, would actually take a constitutional amendment, and the same would be true for making it illegal in every state. But amendments have gone out of style because they’re hard to pass, plus Congress and the president and federal agencies have gotten used to doing whatever they want without worrying about Congress or amendments. To pass an amendment, major and widespread consensus is required, and that’s hard to get if the policy you’re advocating isn’t supported by a strong majority of the people and the states. That’s by design, of course; the design of the Founders.

Republicans are going to put you all back in chains – again

The New Neo Posted on by

Democrats and Joe Biden will be campaigning by drumming up fear:

President Joe Biden called the ‘MAGA crowd’ the ‘most extreme political organization in American history’ in a full-throated attack on Republicans and their ‘ultra-MAGA’ agenda in a speech from the White House on Wednesday.

He also warned that the GOP could ban LGBT children from classrooms if Roe v. Wade is overturned and signaled they could even reverse the 1965 Griswold v. Connecticut case that struck down a state law banning the use of contraceptives by married couples.

What else do you expect from a low-down corrupted guy who has been lying his entire political life? And if he’s not the one deciding on this message, there are plenty of people around him who support him and feed him lines. I happen to think he’s still quite involved in the whole thing, however.

Recall that this is the man who said that Republicans – and Romney, of all people – would “put you’all back in chains.”

So, where’s my next eye surgery post?

The New Neo Posted on by

For those of you who might be wondering where the next post in the series is, I haven’t forgotten. There’s just been a lot of intervening news to cover. The next post should be coming in the next few days.

Meanwhile, a little musical interlude:

Glenn Greenwald on overruling Roe, and the arguments pro and con

The New Neo Posted on by

Greenwald is right, and he’s crystal clear about what the legal issues are (he doesn’t deal with the moral ones). An excerpt:

Rhetoric that heralds the values of democracy and warns of the tyranny of “unelected judges” and the like is not a rational or viable way to defend Roe. That abortion rights should be decided democratically rather than by a secret tribunal of “unelected men in robes” is and always has been the anti-Roe argument. The right of the people to decide, rather than judges, is the primary value which Alito repeatedly invokes in defending the overruling of Roe and once again empowering citizens, through their elected representatives, to make these decisions.

The only way Roe can be defended is through an explicit appeal to the virtues of the anti-democratic and anti-majoritarian principles enshrined in the Constitution: namely, that because the Constitution guarantees the right to have an abortion (though a more generalized right of privacy), then majorities are stripped of the power to enact laws restricting it. Few people like to admit that their preferred views depend upon a denial of the rights of the majority to decide, or that their position is steeped in anti-democratic values. But there is and always has been a crucial role for such values in the proper functioning of the United States and especially the protection of minority rights. If you want to rant about the supremacy and sanctity of democracy and the evils of “unelected judges,” then you will necessarily end up on the side of Justice Alito and the other four justices who appear ready to overrule Roe.

Anti-Roe judges are the ones who believe that abortion rights should be determined through majority will and the democratic process. Roe itself was the ultimate denial, the negation, of unrestrained democracy and majoritarian will. As in all cases, whether Roe’s anti-democratic ruling was an affirmation of fundamental rights or a form of judicial tyranny depends solely on whether one believes that the Constitution bars the enactment of laws which restrict abortion or whether it is silent on that question. But as distasteful as it might be to some, the only way to defend Roe is to acknowledge that your view is that the will of the majority is irrelevant to this conflict, that elected representatives have no power to decide these questions, and that all debates about abortion must be entrusted solely to unelected judges to authoritatively decide them without regard to what majorities believe or want.

The left, of course, hypocritically argues both sides of coin, each time choosing the side that supports their desire to make abortion available everywhere and to ban its banning by any state. That’s why we hear them saying contradictory things like this:

It was bizarre to watch liberals accuse the Court of acting “undemocratically” as they denounced the ability of “five unelected aristocrats” — in the words of Vox’s Ian Millhiser — to decide the question of abortion rights. Who do they think decided Roe in the first place?

Indeed, Millhiser’s argument here — unelected Supreme Court Justices have no business mucking around in abortion rights — is supremely ironic given that it was unelected judges who issued Roe back in 1973, in the process striking down numerous democratically elected laws. Worse, this rhetoric perfectly echoes the arguments which opponents of Roe have made for decades: namely, it is the democratic process, not unelected judges, which should determine what, if any, limits will be placed on the legal ability to provide or obtain an abortion.

There is no such inherent contradiction in the right’s position on Roe, however. If you believe that the SCOTUS justices overstepped their bounds with Roe and found a federal constitutional right where none exists, and that the right to pass legislation on abortion should only be allowed the states, then you certainly are not being inconsistent to say that SCOTUS justices can state as much in a decision and undo Roe for that reason. The left, on the other hand, is saying that the SCOTUS justices (“unelected judges”) are allowed to find such a phantom right in the first place but are barred from finding that they were mistaken at the time and that such a constitutional right does not exist.

Will overruling Roe matter politically?

The New Neo Posted on by

Let’s just assume that the Court will overrule Roe and send abortion policy decisions back to the states. Let’s also assume that Congress won’t manage to pass some sort of bill federalizing the right to abortion in every state (of course, such a bill might also be unconstitutional).

Let’s just ask what the political results would be of a Roe overrule. Commenter “Jeanne” writes:

All the offended rhetoric from the conservative legal community seems pompous and beside the point.

I am having a hard time believing this will not annihilate the Republican chances of taking back the houses in November and the presidency in 2024.

The assumption that voters won’t really care about this seems just really dumb to me.

Maybe I’m dumb … hope so.

I certainly don’t think what Jeanne wrote is dumb. I think it’s a conclusion to which a lot of people have come. Certainly it’s a fear of a lot of people on the right, and a fervent hope of a lot of people on the left. That latter point is probably why this happened in the first place, and I don’t think it was the work and planning of one person either.

So, is the blah-blah of outrage “pompous and beside the point”? It certainly shouldn’t be; this is a big big deal, the purposeful political undermining of one of our branches of government. But anyone who thinks SCOTUS has been immune from politics till now is naive; the political pressure (and threats) from the left have been ratcheting up for years, and all nominations by either party are strongly political. What’s more, after Lois Lerner, all the ins and outs of Russiagate, the myriad impeachments of Trump and the legal hounding of Trump that the state of New York has been engaged in, plus a host of other activities that would have been shocking just a few short years ago but are now business as usual, the SCOTUS leak really doesn’t seem the same sort of surprise it would have been not long ago. I’m sorry to say that, but it’s true.

Which brings us to the question of the effect all of this will have in the 2022 midterms and the 2024 presidential election. I’m going to dispose of the 2024 part by saying it’s just way too far ahead to say anything. But what about this coming November?

I think the answer would be that it doesn’t “annihilate” the GOP chances. It may not even affect them all that much, for the simple reason that the people who are already so wedded to abortion in every single state via Roe were not going to be voting for the Republicans in 2022 anyway. Those who are against Roe will be even more energized to go to the polls, if anything (in fact, I was wondering prior to the leak whether a failure to overrule Roe would be the thing that discouraged a significant number of people on the right from voting in 2022). Those in the middle are probably more interested in the economy and matters of that sort.

The decision should come down in June, and if Roe is overruled I believe that the pro- and anti-abortion energy will shift to the states, where it belongs. Red states will enact bans or strong restrictions. Blue states will do the opposite. Purple ones will have a mixed bag. I see Roe as ultimately affecting state elections more than federal ones.

Of course, I could be wrong. But somehow, I don’t think that reactions such as Schumer’s call to impeach Alito and Kavanaugh will sit well with anyone but the rabidly leftist Democrat base. The supposed reason for these impeachment calls is “lying” during their confirmation hearings when asked about Roe.

Ludicrous charge, but typical leftist tactics.

[NOTE: Please see my previous post from January 2022 on the topic of the probable political consequences of overruling Roe.]

Robert Frost, commencement speaker

The New Neo Posted on by

[NOTE: Here’s a slightly-edited version of a post I first published in 2014. I thought it might be good to put it up again, because it still seems appropriate.]

The time was 1956, over 65 years ago. The place was Colby College in Waterville, Maine, and the speaker was the poet Robert Frost. What he had to say to the students there may surprise you. If you want to read the whole speech, go here, but the part that I was most interested in is this portion, which I’ve condensed into short excerpts from the original:

Is our dream, our American dream—that I think Dreiser thought was “An American Tragedy”—is that dream over? Are we on a new dream?

Or is the Constitution something that isn’t performing—a sort of vanishing act, fading as we watch it, and turning into something else? When they call it “a living document,” that means they can have it any way they want it for this generation. That’s the danger…

Let me say what I’d do about it if I were you. I’d go back and read some of the “Federal Papers.” I’d go back and see whose dream it was. Plenty of time, you’ve got it all before you…

…for me the man that comes nearest what I think was the dream, that may be ours still, was Madison. In the “Federal Papers,” go to Madison and see what he thought it was going to be.

What was it going to be? Go along and think about that—using the “think” in the slang: “You’ve got another think coming.” You see? I’ve got another think coming…

I would think that Tom Paine was very little in it…I’ve read a good deal of Tom Paine, and I know a good deal of what he thought. He thought there was something started about the brotherhood of man that was going to set the whole world on fire, sweep the whole world.

So he rushed right off to France about it. And we see what came of it. They had a revolution there. And they had four republics—and not to mention three or four monarchies—since then. Their dream was a very confused dream, if they had a dream.

Another thing that I pick up…about freedom and equality. It occurred to me not so terribly long ago—rather recently—that the more equality I have, the less freedom I have. These two things balance each other.

If one party leans a little more towards the freedom—freedom of enterprise, freedom to assert yourself, freedom to achieve, freedom to win—the other comes in with the tone of mercy and says: “Let’s not let anybody get too far ahead. Let’s have a Sherman Act or something, to keep people from getting too rich.” That’s toward the equality, the fraternity of it.

I didn’t know that for years, didn’t know that the more freedom I had, the less equality I could expect—somebody’d beat me and get ahead of me if we had freedom. (I’m willing to let him get ahead of me, if he can.)…

Can you imagine any poet giving a similar commencement speech today? In fact, I can hardly imagine anyone giving a similar commencement speech today. Frost assumed a certain context for his graduating class listeners—for example, that they knew something about who Dreiser and Tom Paine and Madison might be, and he assumed that what these men said and thought might actually interest and inform them. I don’t think that would be the case now.

I’ll close with one more quote from Frost, who was an educator for many years of his long long life—not just a poet, although he was certainly that, and not just a farmer, although he did that too when a young man. He was a teacher at all levels: grade school, high school, and college. He was a teacher in many places. He was a teacher when he was obscure and when he was very very famous.

Here’s what he had to say about his attraction to teaching, from a lecture he gave in 1961 at the University of Minnesota:

I’m almost as interested in education as I am in poetry…I’ve had so much to do with education that I say I’m like some monkeys that Darwin tells about.

He showed them a bagful of snakes. And they looked at ’em and and shrieked and threw up their arms and fled. But they couldn’t stay away. They kept coming back and and looking in the bag at the snakes and throwing up their arms and shrieking and running away again.

That’s the way I’ve done for education, about the last fifty, sixty years—sixty, sixty-five years. And here I am again.

Frost died a little over a year later, at the age of 88.

Controlling the narrative: slip-sliding away?

The New Neo Posted on by

What’s going on here? [emphasis mine]:

While discussing the Musk take-over on CNN’s potato time with Brain Stelter, “media analyst” David Zurawik proclaimed that Musk is “dangerous” and shouldn’t be allowed to restore free speech on the platform.

Zurawik suggested that the U.S. look to Europe, which has recently brought in new laws to limit social media, and even threatened to ban Twitter if Musk doesn’t play ball.

“There’s a bigger problem here about how we’re going to control the channels of communications in this country,” Zurawik frothed, panicking at the notion of the likes of CNN not being able to dictate what Americans think.

Musk has them very very frightened. They are accustomed to having controlled the “narrative” for so many people for so long that the prospect of losing even some of that control is terrifying them and causing them to want to clamp down further.

Politico publishes SCOTUS leak on overturning Roe

The New Neo Posted on by

It’s another giant step down the road to the ruin of the tacit agreements that allowed this country to function in a relatively peaceful manner. First we have the leak of Alito’s alleged majority opinion overturning Roe, and then the publication by Politico – although I wouldn’t expect the press to restrain itself, since this leak was most likely perpetrated by the left to attain some of the goals of the left.

There are multiple articles about the leak and the opinion just about everywhere, and I suggest reading some at Legal Insurrection, Powerline, and RedState. This one is of interest as well.

Goals? Intimidation of conservative justices: check.
Inflaming of Democrat voters: check.

One thing we do know is that the 98-page draft is authentic, because Justice Roberts has confirmed that, while adding that it’s not a final opinion, calling for an investigation by the SCOTUS marshal, and saying that the Court’s work will be unaffected.

I’ll leave aside the question of who leaked it, because it’s very speculative at this point, but most of the chit-chat centers on Sotomayor and/or a clerk of hers who is graduate of Yale Law School. Most law schools have become leftist activist training centers these days.

But the leak could even have been perpetrated by someone on the right, although I think the chances of that are extremely low, since the leak this would seem more likely to serve the purposes of the left. However, if the leak is specifically meant to intimidate John Roberts into upholding Roe – as so many people believe, and I tend to concur with that – and the vote against Roe was already 5-3 without him, then what purpose would a Roberts change of vote serve? If he joins the pro-Roe side the vote still only comes to 5-4 against. I’m not sure whether the difference between 6-3 and 5-4 is a difference that matters, although I suppose the closer the vote the more it fuels the leftist drive for court-packing (which already is probably quite well-fueled).

What are the political consequences if Roe is overturned? I believe that most Americans are unaware of what overturning Roe would do in the legal sense, because the left doesn’t want them to know. So many people appear to think it would outlaw abortion, but that’s certainly not true. It would allow a state to do so, however, and the reality is that not too many states would be likely to ban it outright, and those states almost certainly would be strongly red states. Blue states would keep very lenient abortion laws, and purple states would probably have some abortion but restrict it somewhat.

However, the left does not surrender ground once won. All leftist ground is sacred. Repealing Roe is considered a kind of sacrilege to what has become the leftist religion, and it cannot be allowed.

As for the leak itself, as commenter “MBunge” says:

This leak, if it’s accurate, is possibly the most outrageous and damning betrayal of U.S. legal community ethics in history. Even John Roberts is going to be enraged by this and he’ll be joined by any pundit or legal thinker out there who even pretends to believe in judicial independence and integrity.

This is the Left almost literally declaring war on the U.S. federal court system.

However, now it’s done. It’s of a piece with so much recent court intimidation by the left. The left must think this is a winning hand, but I’m not at all sure. Biden and Democrats are hugely unpopular right now for other reasons, and most people who would be extremely outraged by a Roe repeal may have already been among the minority planning to vote for Democrats. It would be nice if the GOP could get out the word that repealing Roe merely throws the question back to the states, because that might allay some fears as well. I also don’t understand the assumption that this will only rally the left, because it seems to me that it could also energize the right, which finally smells victory in its long fight against Roe, a victory which only could have happened with Court appointments by Republicans.

The left is indeed energized to demonstrate, however. Going back to the summer of 2020 and all the riots doesn’t seem to be a winning hand for them either, but who knows? They’re been playing the January 6th Insurrection card for so long that it might make them look like hypocrites as well to start (or revive) their own insurrection. But the appearance of hypocrisy has never been much of a stumbling block for them before, and I doubt it will be now.