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4 years ago
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3 years ago

I'm not a legal expert, so I wonder, politics and individual morality aside, is it even possible for Congress to codify Roe v Wade like the SCOTUS seems to suggest?

From what I've been able to gather it may be possible, but it would be a very fine line. Could the SCOTUS just shut down any such law as Congressional overreach? Here's what I've been able to discern so far. If you are a legal expert though, please let me know if I'm missing something.

The Constitution grants limited powers to Congress and any power not expressly given is reserved for the states to decide for themselves. Of those powers, Congress is given the power to regulate commerce, collect and spend revenue from taxes, and make laws that are necessary and proper for it to complete it's duties. (It can also ratify treaties, and raise armies but let's stick to more domestic powers). Congress was also given power after the civil war, by the 13th, 14th and 15th amendments, to ensure equal access to the rights granted to the people for all people. Specifically they can make laws that preserve the rights of life, liberty, and property, and of equal access to voting, and must do so with equal protection for every state, not just a few.

Let's start from the perspective of original powers. From what I understand, Congress does not have unlimited power even within the powers they've been granted. They must use their power to perform the duties laid out for them in the Constitution. In the preamble the government is formed to "...establish justice, provide for the common defense, promote the general welfare, and ensure the blessings of liberty to ourselves and our posterity..." When Congress uses it's powers it generally must adhere to these principals. When the social security act was established, it was in the interest of promoting the general welfare that it was defended in the SCOTUS.

Ignoring the civil war amendments for now, could Congress codify Roe under it's original powers? It doesn't seem likely. They may be able to use some combination of commercial regulation for the general welfare, but generally Congress can only regulate interstate commerce unless intrastate commerce has a knock-on effect in other states. Writing a law that prohibits states from criminalizing certain medical procedures probably wouldn't fly if defended in court simply under the commerce powers with respect to general welfare. This would be more a regulation of the states than a regulation of commerce, so I don't think we can rely on the strength of the original constitutional powers themselves.

Most of the laws Congress has passed that actually restrict state action are made on the basis of the civil war amendments. Civil rights and voting rights are chief among these. There may be a world where Roe could be codified under the 14th amendment. Something like, "no law shall be enacted infringing on a patient's liberty to undergo any medical treatment or procedure under the supervision of a licensed medical professional and with the patient's consent and, if the patient is under guardianship, the patient's guardian's consent."

By grounding the law in liberty it's more likely to withstand a challenge in SCOTUS. But there's still the question of the fetus, being unborn, having a constitutional right to life that would supercede the mother's right to liberty or indeed life in the case of a life threatening pregnancy. I doubt SCOTUS could strike down a law that was specific to medically necessary abortion, but I'm not an expert and they've done some pretty dumb shit already.

The question of the fetus' rights may be open for interpretation. Most legal doctrine, that I've been able to find, are only concerned with a baby once it is born. In fact a baby isn't even a citizen of the US until it is born. Until then, most of the definitions and principles seem to consider a fetus as property until it is born. If that remains the interpretation then the question becomes, whose property is it? Since the fetus cannot survive outside the mother's womb, with some limited exceptions, until it is born and we have no means to transfer a fetus to another person, it seems clear that the ownership is strictly the mother's. No amount of legal wrangling could transfer possession of a fetus to the father without undue burden to the mother and/or fetus.

That seems to be the only possible option, but I put it to anyone with more legal expertise than I, could something like this work? Could Congress pass a law like this, restricting the states ability to criminalize medical procedures, that could stand up to SCOTUS scrutiny? Would it make more sense to codify the regulation of such procedures by a body or bodies such as HHS, the CDC and/or the FDA? Like, states can criminalize treatments/procedures not approved by these bodies, but not those that already have regulatory or special approval?


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