While I agree that Congress could do a great deal of mischief under authority granted it by the Commerce Clause (e.g., banning interstate transportation of abortion drugs, supplies, and equipment), my reading of Dobbs is that is PRECLUDES Congress from enacting a nationwide, statutory ban on abortion. [See Congressional Research Service, "Congressional Authority to Regulate Abortion," CRS Legal Sidebar, July 8, 2022.]
This is because:
1. Congress may only enact legislation under a specific power enumerated in the Constitution, and cannot act beyond the scope of its powers to intrude on state sovereignty.
2. The states’ broad authority is subject only to limitations imposed by the Supremacy Clause [Article VI], which makes federal law “the Supreme Law of the Land” and prohibits states from contravening the Constitution or lawful congressional enactments.
3. Dobbs holds that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including…the Due Process Clause [Section 1] of the Fourteenth Amendment.” [597 U.S. 215 (2022), p. 5.]
4. The Tenth Amendment reserves to the states the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states. The Supreme Court has interpreted this amendment as prohibiting Congress from “commandeering” such powers. [See Murphy v. NCAA, 584 U.S. 453 (2018). Writing for the majority, Justice Alito rejected the argument that the anti-commandeering doctrine only applies to affirmative congressional commands, as opposed to when Congress prohibits certain state action. Finding the distinction between affirmative requirements and prohibitions empty, the Court held that both types of commands equally intrude on state sovereign interests.]
5. Therefore, unless and until Dobbs is overturned, the authority to regulate abortion rests solely with the states and Congress may neither mandate nor prohibit a national right to abortion. [“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives [i.e., state legislatures].” Alito, J. writing for the majority in Dobbs. 597 U.S. 215 (2022), pp. 78-9.] Bracketed clarification mine.
Consequently, Congress has no authority to enact a nationwide abortion ban. Any such statute could be challenged as unconstitutional under the Tenth Amendment. And, given the Court’s ruling in Murphy v. NCAA (with its majority opinion written by Justice Alito), it is virtually certain to rule in favor of the plaintiffs on anti-commandeering grounds.
This also means, however, that if a national right to abortion is to be restored, it must address the constitutional obstacles to doing so.
One option that should be considered is for President Biden to direct the National Archivist to certify the Equal Rights Amendment as the 28th Amendment AS SOON AS POSSIBLE, but no later than leaving office. This is justified because: (1) the ERA has been approved by the requisite 38 states and (2) there is no CONSTITUTIONAL limit on the time allowed to ratify an amendment. [See Allison Held et al., “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States,” William & Mary Journal of Women and the Law, Spring 1997.] And, in any case, who cares if it's potentially illegal? As a legitimate exercise of core executive power, it cannot be challenged as being illegal. Let MAGA choke on the SCOTUS decision in Trump v. U.S.
The Dobbs decision could then be appealed back to the SCOTUS, on the basis that the ERA provides the constitutional authority for a woman's right to privacy and control over her own body that the Court failed to find in the Constitution as it currently reads.
What if the fetus was missing it’s skull and brain? What would your five year old granddaughter think about that? It would give her nightmares for the rest of her life. You simply refuse to understand that unless you have a uterus, you don’t get an opinion. Again, none of your business!!
And we could pick any other policy issue and Republicans' plans for it would be just as dystopian. This is what we're voting on. I still don't think enough Americans realize at all what the Republican agenda really is. Hopefully we can beat them anyway.
If evil prevails instead, we have to maintain access to reliable information to stand any chance of a popular movement removing the regime. Journalists will quickly go to the top of the list of 'enemies of the state'.
In all the articles I have read about the abortion apocalypse into which we may be heading, no one has ever talked about what happened in Romania under Ceaușescu. https://foreignpolicy.com/2019/05/16/what-actually-happens-when-a-country-bans-abortion-romania-alabama/ As I am wont to say, historians are always standing on the sidelines saying, "Don't do that! We tried it before, and it didn't work." But nobody listens to us.
I have been talking about it for years, all the poor, robotic-type babies warehoused in orphanages who were starved of touch and bonding with another human. And were never quite right. Ceausescu richly deserved his fate.
Oddly enough one of my friends (a single Jewish surgeon) went to Romania and adopted one of those babies, she tried very hard to give the child everything she needed, but it did not turn out well. Very sad for both of them.
I'd like to call your attention to a NYT article a few days ago. Trump has his own "Plan B" ( as I call it ). "Trump-aligned Group is poised to be more Influential than Project 2025". Remember when he tried to disavow Project 2025 this summer? Well, that's because he has the "American First Policy Institute" in the wings. It is a Texas-based, right-wing think tank headed by names like Kelly Anne Conway, Bobby Jindhal, Pam Bondi etc.,. Trump's presidential transition leader is a board member. The policies are like a mirror image of Project 2025. (see "HOPE Agenda"). They are also vetting people for the hoped-for Trump administration. These people are entrenched all over the place. https://www.americafirstpolicy.comhttps://www.nytimes.com/2024/10/24/us/politics/donald-trump-campaign-america-first-policy-institute.html?unlocked_article_code=1.XU4.RtQw.s4BeWn58m0VM&smid=url-share
The name I was expecting to see in a shortlist of anti-abortion judges is Matthew Kacsmaryk. Is he not on their radar for an appeals court job? He certainly seems to have been auditioning.
I hadn't seen this video before - beyond infuriating. So these women would have to go to Mexico or Canada if there is a national ban and assuming they can travel or they will die carrying the pregnancy to term.
That jackass saying that (1) women lie about being rape or incest victims so that tht could have an abortion and (2) telling womrn that they should view a pregnancy that occurred BECAUSE of rape or incest is an "opportunity ".
I am so afraid that unless many more women die that people will continue to br in denial.
yeah, scary that they are so irresponsible and if we condemn that he should experience it first hand, that would be punishing his daughter or wife. There was another fucker who said why can't they swallow a camera to find more about pregnancies. This is their intelligence, knowledge of science and public health. These people should be voted out and banished from the public square.
Bite me. You just pegged yourself as a narsissistic, Christian mysoginist. Keep your theology off my biology. When you grow a uterus, someone might listen to you. Hope your granddaughters don’t meet someone like you when they are adults.
Thank you. I am listening. I do not intend to pontificate. Just tell me the truth and I will hear it, learn from it, and pass it on to others that you may not be able to reach.
Tim, you are an adult. Take adult responsibility and educate yourself. Read a book. I'm not here to guide you to enlightenment. That's a solitary journey. In case you didn't know it, women don't owe you shit.
Jesus has already given me the "Light of Life." As a "teacher of women's history," have you studied how that several women were the first "eye-witnesses" to give testimony to Jesus' Resurrection?
I am a giver -- not a "taker." And I don't have anything to share except the Blessings of God.
Dude, as a retired surgical assistant who actually has a medical degree, and specialty in Surgical techniques, you are full of effluent. There is no such procedure as a partial birth abortion.
"The term "partial-birth abortion" also has no independent meaning: it is not a medical term nor does it refer to a medical procedure. The correct term, "intact dilation and extraction," is never mentioned in most proposed legislation, much of which is written in broad enough language to outlaw all abortions. Most states that passed bans on "partial-birth abortions," in fact, had previously banned late-term abortions. In Georgia, a court order revised a "partial-birth abortion" law by limiting it to post-viability dilation and extraction and insisting on exceptions to protect the pregnant women's life and health. The courts have severely limited or enjoined "partial-birth abortion" legislation in 19 of the 20 states where challenges were mounted. Because an educated public overwhelmingly rejects the bans, reproductive rights activists are attempting to educate the public despite the inability or unwillingness of the media to make the crucial distinction.
Then why did my former Senator Claire McCaskill call it that? And she insisted "that it remain legal to save the life of the mother." I was trying to be kind, because I assumed that everyone knows what it is: But just how can sucking the brains out of a partially delivered baby, and then delivering the dead baby, save its mothers life? If you say its mother wouldn't be "happy" to care for this child, that is no excuse for murder! BTW, my daughter is a doctor.
You're completely misguided and don't know what the fuck these medical procedures are and why they are needed. Talk to your daughter, assuming she is one of the sane ones.
What is barbaric is fools like you getting women and babies killed for lack of pre/post maternal healthcare. Blood on your hands, of both women and babies.
Thank you for your kind response: If it were that simple, I would not be involved in this difficult dilemma. Can't we find a way to give that same opportunity to the unborn children, half of which are female.
It’s a zygote, an embryo, a fetus, not a baby. Put down your religious propaganda and read some science. This comes under the heading of none of your f. . .ing business.
I purchased this space to tell you to 'put a sock in it!' No disrespect but you don't seem to understand the underlying science nor the concept of 'none of your business' and certainly not of our government. You are free to do what you want in your life.
My 5-year-old and 2-year-old granddaughters can look at the sonogram of their baby brother or sister and know that it is a living baby. Why do you all ignore this fact and deny its right to live?
Can I ask you a question? Religion is the determining factor in beliefs about abortion, the more secular a nation is the more prochoice.
Why do you think this is? 97% of atheists are prochoice according to Pew polling. Why do you think non religious people don't see embryos and early term foetuses as 'innocent babies' ?
Certainly: Because they are blinded by "the god of this world," who is a "murderer." A familiar passage says, "The fool hath said in his heart, There is no God." The original literally says "NO God!"
Jesus sternly warned in Matthew 5:22 not to call anyone a "fool." My point was that they are denying God. It is not my place to be a Judge -- just to proclaim the Truth. Then everyone has a choice whether or not to believe God.
You seem to have a hard time understanding the science that there is no 'baby' when abortions are performed or needed. I think you should just stay out of this debate and enjoy your grandchildren and pray that your daughters don't have complications with their future pregnancies -- do you want your pregnant daughter to walk around with a dead fetus inside until term, as Jessica calls them, Walking Coffins? do you want your daughter to miscarry and then not have access to D&C (abortion) and die of sepsis? do you want your daughter to deliver the baby and die of sepsis when she does not get an D&C (abortion) to clear remnants in her uterus after a month? Or what if your old wife needs a hysterectomy or other procedures in her post-menopausal time when they have to enlarge the cervix using the medication that your Christian people are banning? All these questions relate to real cases now since Dobbs where women have either died or suffered near death or had to travel somewhere at great risk and cost. Is that what you want for your daughters and wife?
We are not ignoring anything - we are following science and want intelligent public health policy that does not kill women and most important, want our fundamental rights not mucked around -- you or anyone else don't have a right to a pregnant woman's body, period. She is not some damn community property, like the GA Judge aptly said.
All of your above examples, while legitimate in their own limited way, are "red herrings." Nobody I know of wants to kill women, but I sure know of people who make a lot of money killing babies! Why do you insist that a living human being in the womb has no rights? The baby is NOT part of the mother's body and has his or her own "blood type." Again, all I am trying to prevent is abortion, simply because someone wants the baby killed.
wow, you need more help than I can offer! Pregnant women are getting killed because of people like you whether you intended it or not. I hope you experience first hand the 'red herring' because unless fools like you and the politicians stop mucking around with women's health, it will come to your door one day.
While I agree that Congress could do a great deal of mischief under authority granted it by the Commerce Clause (e.g., banning interstate transportation of abortion drugs, supplies, and equipment), my reading of Dobbs is that is PRECLUDES Congress from enacting a nationwide, statutory ban on abortion. [See Congressional Research Service, "Congressional Authority to Regulate Abortion," CRS Legal Sidebar, July 8, 2022.]
This is because:
1. Congress may only enact legislation under a specific power enumerated in the Constitution, and cannot act beyond the scope of its powers to intrude on state sovereignty.
2. The states’ broad authority is subject only to limitations imposed by the Supremacy Clause [Article VI], which makes federal law “the Supreme Law of the Land” and prohibits states from contravening the Constitution or lawful congressional enactments.
3. Dobbs holds that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including…the Due Process Clause [Section 1] of the Fourteenth Amendment.” [597 U.S. 215 (2022), p. 5.]
4. The Tenth Amendment reserves to the states the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states. The Supreme Court has interpreted this amendment as prohibiting Congress from “commandeering” such powers. [See Murphy v. NCAA, 584 U.S. 453 (2018). Writing for the majority, Justice Alito rejected the argument that the anti-commandeering doctrine only applies to affirmative congressional commands, as opposed to when Congress prohibits certain state action. Finding the distinction between affirmative requirements and prohibitions empty, the Court held that both types of commands equally intrude on state sovereign interests.]
5. Therefore, unless and until Dobbs is overturned, the authority to regulate abortion rests solely with the states and Congress may neither mandate nor prohibit a national right to abortion. [“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives [i.e., state legislatures].” Alito, J. writing for the majority in Dobbs. 597 U.S. 215 (2022), pp. 78-9.] Bracketed clarification mine.
Consequently, Congress has no authority to enact a nationwide abortion ban. Any such statute could be challenged as unconstitutional under the Tenth Amendment. And, given the Court’s ruling in Murphy v. NCAA (with its majority opinion written by Justice Alito), it is virtually certain to rule in favor of the plaintiffs on anti-commandeering grounds.
This also means, however, that if a national right to abortion is to be restored, it must address the constitutional obstacles to doing so.
One option that should be considered is for President Biden to direct the National Archivist to certify the Equal Rights Amendment as the 28th Amendment AS SOON AS POSSIBLE, but no later than leaving office. This is justified because: (1) the ERA has been approved by the requisite 38 states and (2) there is no CONSTITUTIONAL limit on the time allowed to ratify an amendment. [See Allison Held et al., “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States,” William & Mary Journal of Women and the Law, Spring 1997.] And, in any case, who cares if it's potentially illegal? As a legitimate exercise of core executive power, it cannot be challenged as being illegal. Let MAGA choke on the SCOTUS decision in Trump v. U.S.
The Dobbs decision could then be appealed back to the SCOTUS, on the basis that the ERA provides the constitutional authority for a woman's right to privacy and control over her own body that the Court failed to find in the Constitution as it currently reads.
What if the fetus was missing it’s skull and brain? What would your five year old granddaughter think about that? It would give her nightmares for the rest of her life. You simply refuse to understand that unless you have a uterus, you don’t get an opinion. Again, none of your business!!
Tim Cantrell, the above post is for you.
And we could pick any other policy issue and Republicans' plans for it would be just as dystopian. This is what we're voting on. I still don't think enough Americans realize at all what the Republican agenda really is. Hopefully we can beat them anyway.
If evil prevails instead, we have to maintain access to reliable information to stand any chance of a popular movement removing the regime. Journalists will quickly go to the top of the list of 'enemies of the state'.
Many of them are already complying with the authoritarians.
Like Jeff Bezos
In all the articles I have read about the abortion apocalypse into which we may be heading, no one has ever talked about what happened in Romania under Ceaușescu. https://foreignpolicy.com/2019/05/16/what-actually-happens-when-a-country-bans-abortion-romania-alabama/ As I am wont to say, historians are always standing on the sidelines saying, "Don't do that! We tried it before, and it didn't work." But nobody listens to us.
I have been talking about it for years, all the poor, robotic-type babies warehoused in orphanages who were starved of touch and bonding with another human. And were never quite right. Ceausescu richly deserved his fate.
Thanks, Natalie, for remembering. Those poor women were forced to give birth by some megalomaniacal asshole.
Oddly enough one of my friends (a single Jewish surgeon) went to Romania and adopted one of those babies, she tried very hard to give the child everything she needed, but it did not turn out well. Very sad for both of them.
Tragic. Lives lost to patriarchy.
Yes.
Song for today
https://www.youtube.com/watch?v=se-didBGn8A
I'd like to call your attention to a NYT article a few days ago. Trump has his own "Plan B" ( as I call it ). "Trump-aligned Group is poised to be more Influential than Project 2025". Remember when he tried to disavow Project 2025 this summer? Well, that's because he has the "American First Policy Institute" in the wings. It is a Texas-based, right-wing think tank headed by names like Kelly Anne Conway, Bobby Jindhal, Pam Bondi etc.,. Trump's presidential transition leader is a board member. The policies are like a mirror image of Project 2025. (see "HOPE Agenda"). They are also vetting people for the hoped-for Trump administration. These people are entrenched all over the place. https://www.americafirstpolicy.com https://www.nytimes.com/2024/10/24/us/politics/donald-trump-campaign-america-first-policy-institute.html?unlocked_article_code=1.XU4.RtQw.s4BeWn58m0VM&smid=url-share
Well that was a nightmarish read.
A Trump presidency would also ban abortion for people in the military. That was true the last time around, and Biden reversed it.
Well stated, Jessica. Thanks.
Thanks Grace and Jessica. Cautiously hopeful 🩷💙
One word: No.
Vote.
Help campaigns down ballot.
In case it isn't clear?
NO.
Beyond chilling
The name I was expecting to see in a shortlist of anti-abortion judges is Matthew Kacsmaryk. Is he not on their radar for an appeals court job? He certainly seems to have been auditioning.
Ted Cruz is said to have picked he, and Ho for the Texas supreme court. The worst, picking fellow monsters.
Extremism in predicting what Trump might do is no vice, and moderation about his appointees is no virtue.
In case anyone needs more evidence of what happens when abortion is banned, listen to these stories out of Idaho.
https://www.youtube.com/watch?v=y2r7rNbQX6c
I hadn't seen this video before - beyond infuriating. So these women would have to go to Mexico or Canada if there is a national ban and assuming they can travel or they will die carrying the pregnancy to term.
That jackass saying that (1) women lie about being rape or incest victims so that tht could have an abortion and (2) telling womrn that they should view a pregnancy that occurred BECAUSE of rape or incest is an "opportunity ".
I am so afraid that unless many more women die that people will continue to br in denial.
yeah, scary that they are so irresponsible and if we condemn that he should experience it first hand, that would be punishing his daughter or wife. There was another fucker who said why can't they swallow a camera to find more about pregnancies. This is their intelligence, knowledge of science and public health. These people should be voted out and banished from the public square.
Bite me. You just pegged yourself as a narsissistic, Christian mysoginist. Keep your theology off my biology. When you grow a uterus, someone might listen to you. Hope your granddaughters don’t meet someone like you when they are adults.
Its nearly always religion with the antis
I love you too -- Enough to try to communicate and work with you to solve our serious problems. Educate me.
You are here. Educate yourself. As a former teacher of women’s history, the first rule is to listen not pontificate. Let us speak and you will learn.
Thank you. I am listening. I do not intend to pontificate. Just tell me the truth and I will hear it, learn from it, and pass it on to others that you may not be able to reach.
Tim, you are an adult. Take adult responsibility and educate yourself. Read a book. I'm not here to guide you to enlightenment. That's a solitary journey. In case you didn't know it, women don't owe you shit.
Jesus has already given me the "Light of Life." As a "teacher of women's history," have you studied how that several women were the first "eye-witnesses" to give testimony to Jesus' Resurrection?
I am a giver -- not a "taker." And I don't have anything to share except the Blessings of God.
Dude, as a retired surgical assistant who actually has a medical degree, and specialty in Surgical techniques, you are full of effluent. There is no such procedure as a partial birth abortion.
"The term "partial-birth abortion" also has no independent meaning: it is not a medical term nor does it refer to a medical procedure. The correct term, "intact dilation and extraction," is never mentioned in most proposed legislation, much of which is written in broad enough language to outlaw all abortions. Most states that passed bans on "partial-birth abortions," in fact, had previously banned late-term abortions. In Georgia, a court order revised a "partial-birth abortion" law by limiting it to post-viability dilation and extraction and insisting on exceptions to protect the pregnant women's life and health. The courts have severely limited or enjoined "partial-birth abortion" legislation in 19 of the 20 states where challenges were mounted. Because an educated public overwhelmingly rejects the bans, reproductive rights activists are attempting to educate the public despite the inability or unwillingness of the media to make the crucial distinction.
PubMed Disclaimer" https://pubmed.ncbi.nlm.nih.gov/12294330/
Then why did my former Senator Claire McCaskill call it that? And she insisted "that it remain legal to save the life of the mother." I was trying to be kind, because I assumed that everyone knows what it is: But just how can sucking the brains out of a partially delivered baby, and then delivering the dead baby, save its mothers life? If you say its mother wouldn't be "happy" to care for this child, that is no excuse for murder! BTW, my daughter is a doctor.
You're completely misguided and don't know what the fuck these medical procedures are and why they are needed. Talk to your daughter, assuming she is one of the sane ones.
I don't know of any abortion "procedure" that is not "barbaric."
What is barbaric is fools like you getting women and babies killed for lack of pre/post maternal healthcare. Blood on your hands, of both women and babies.
You are free to espouse your beliefs, and to live your life accordingly.
Other women and their partners would like to live their lives according to their principles.
Thank you for your kind response: If it were that simple, I would not be involved in this difficult dilemma. Can't we find a way to give that same opportunity to the unborn children, half of which are female.
It’s a zygote, an embryo, a fetus, not a baby. Put down your religious propaganda and read some science. This comes under the heading of none of your f. . .ing business.
My 5-year-old granddaughter can see it: It's not "religious propaganda" -- just "common sense" and the truth.
I purchased this space to tell you to 'put a sock in it!' No disrespect but you don't seem to understand the underlying science nor the concept of 'none of your business' and certainly not of our government. You are free to do what you want in your life.
My 5-year-old and 2-year-old granddaughters can look at the sonogram of their baby brother or sister and know that it is a living baby. Why do you all ignore this fact and deny its right to live?
Can I ask you a question? Religion is the determining factor in beliefs about abortion, the more secular a nation is the more prochoice.
Why do you think this is? 97% of atheists are prochoice according to Pew polling. Why do you think non religious people don't see embryos and early term foetuses as 'innocent babies' ?
Certainly: Because they are blinded by "the god of this world," who is a "murderer." A familiar passage says, "The fool hath said in his heart, There is no God." The original literally says "NO God!"
So you think non religious people are fools?
Jesus sternly warned in Matthew 5:22 not to call anyone a "fool." My point was that they are denying God. It is not my place to be a Judge -- just to proclaim the Truth. Then everyone has a choice whether or not to believe God.
You seem to have a hard time understanding the science that there is no 'baby' when abortions are performed or needed. I think you should just stay out of this debate and enjoy your grandchildren and pray that your daughters don't have complications with their future pregnancies -- do you want your pregnant daughter to walk around with a dead fetus inside until term, as Jessica calls them, Walking Coffins? do you want your daughter to miscarry and then not have access to D&C (abortion) and die of sepsis? do you want your daughter to deliver the baby and die of sepsis when she does not get an D&C (abortion) to clear remnants in her uterus after a month? Or what if your old wife needs a hysterectomy or other procedures in her post-menopausal time when they have to enlarge the cervix using the medication that your Christian people are banning? All these questions relate to real cases now since Dobbs where women have either died or suffered near death or had to travel somewhere at great risk and cost. Is that what you want for your daughters and wife?
We are not ignoring anything - we are following science and want intelligent public health policy that does not kill women and most important, want our fundamental rights not mucked around -- you or anyone else don't have a right to a pregnant woman's body, period. She is not some damn community property, like the GA Judge aptly said.
All of your above examples, while legitimate in their own limited way, are "red herrings." Nobody I know of wants to kill women, but I sure know of people who make a lot of money killing babies! Why do you insist that a living human being in the womb has no rights? The baby is NOT part of the mother's body and has his or her own "blood type." Again, all I am trying to prevent is abortion, simply because someone wants the baby killed.
wow, you need more help than I can offer! Pregnant women are getting killed because of people like you whether you intended it or not. I hope you experience first hand the 'red herring' because unless fools like you and the politicians stop mucking around with women's health, it will come to your door one day.