Constitution Aborted
The WSJ OpinionJournal opines today that yesterday's Supreme Court decision in Gonzales v. Carhart was a step toward reversal of Roe v. Wade. They are wrong. And the Supreme Court was wrong to uphold a federal law that does not conform to the Tenth Amendment.
Hopes for reversal of Roe v. Wade should be pinned to states' rights, and yesterday's ruling was a step backwards in that respect. Abortion is simply not a matter for consideration of the federal government, its law or its courts, any more than your average homicide laws.
Conversely, the Nebraska partial birth abortion law overturned in Stenberg v. Carhart should have been deemed perfectly constitutional.
On a lighter note, also in OpinionJournal, Julia Gorin tells us why Embryos are Cooler than Kids.
Hopes for reversal of Roe v. Wade should be pinned to states' rights, and yesterday's ruling was a step backwards in that respect. Abortion is simply not a matter for consideration of the federal government, its law or its courts, any more than your average homicide laws.
Conversely, the Nebraska partial birth abortion law overturned in Stenberg v. Carhart should have been deemed perfectly constitutional.
On a lighter note, also in OpinionJournal, Julia Gorin tells us why Embryos are Cooler than Kids.
posted by Scribbler de Stebbing | 4/19/2007 07:35:00 AM
Didn't they write in the majority that they did not consider the Commerce Clause argument as part of the case because it was not brought up? I think the law would be likely struck down if such an argument were made. However, this ruling will also apply to the state laws.
I'll have to read the opinion. It would have to be the opposite of the Commerce Clause though, States' Rights, unless the Commerce Clause was cited in the law itself as justification.
Either way, the prolife movement shoots itself in the foot when it subverts the Constitution with federal abortion law.
I'm not sure I agree with Stebbing about tactics, but I agree about the law. If I had my way, I would have used this occasion to strike down the federal partial birth abortion ban as unconstitutional and overturn Roe v. Wade, both under the justification that this is a state issue.
About tactics, what you are proposing Scribbler is that the pro-choicers can pick and choose on a case by case basis whether abortion is a federal issue. If a state wants to outlaw it, the Federal Constitution disallows this, but if the Federal Congress wants to ban a certain procedure, then abortion all of the sudden becomes a state issue. We shouldn't let them get away with this. If it's currently a Federal issue because they made it one, we get to fight back using the Federal government while making it clear that we don't agree that this is the proper playing field.
This is essentially the tack Thomas took in his one paragraph concurrence (joined by Scalia). He basically said "ok. According to my reading of your stupid opinions on abortion previously, this law is fine."
You misunderstood me. There should be NO federal abortion laws, either pro or con.
States can have all the abortion laws they want, again either pro or con, and with whatever punishments the deem appropriate. I'm fine with Nebraska having their partial birth law.
Technically, California could choose to have no penalty for abortion up to the age of five. I'm not saying I wouldn't have a problem with that, but it would be Constitutional.
And if Connecticut wants to have a "no birth control law" (this was the first "privacy" case), in my opinion, that is Constitutional.
If you're saying Roe needs to be overturned to give the states back their rightful authority, I agree.
That's what I'm saying. The Federal Government needs to get out of the abortion law business. That should be our position. That as a matter of Constitutional law, this is a state issue.
BUT, as long as the other side forces the playing field to be at the federal level, we need to play the game there, while noting that we think this is the wrong playing field.
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