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PaperclipPerfector  23d ago (text post)   29924 thread views

Culture War Roundup for the week of October 21, 2024

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how does the federal government ban abortion? that seems beyond their power. i presume the FDA can ban / regulate abortion drugs but the FDA doesn't have the power to regulate surgical procedures. but it looks like commerce clause strikes again. just mention the magic words 'affecting interstate commerce' and the federal government can regulate anything. https://en.wikipedia.org/wiki/Gonzales_v._Carhart

(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment.

the other hilarious thing is if they argued against the federal government having the power to regulate abortion they would have been probably more likely to succeed given the make up of the court.

Birthing new Americans is a hell of a lot more impactful on interstate commerce than Wickard growing slightly more wheat that he's not selling. Interstate commerce can be scaled to infinity given the current standard.

Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial", in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

You could make the flimsiest argument that not regulating abortion undercuts regulation on baby strollers and you're probably already there.

Can't they also criminalize it? I could have sworn it used to be a crime in a bunch of places.

The 14th Amendment gives the federal government the power to protect the right to life.

Ah but the unborn are not "citizens of the united states" yet are they?

For the right to life part, the relevant question is only whether they are persons: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

So in theory all that's needed then is for congress to modify 1 U.S. Code § 8 to include the unborn or to add a clause that includes them for some specific purposes?

I'm not that familiar with US Code, but I guess basically yes.

Looking up the code you referenced, modifying it looks sufficient and might not even be necessary, since it also says "(c)Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being “born alive” as defined in this section"

Federal law already considers murdering a pregnant woman and her unborn child to be two murders. It was slightly controversial at the time, but hasn't quite (yet) been read the way you suggest.

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