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Comment by s1artibartfast | Hacker News Reader

I for one hope the Roe decision diffuses the abortion question in the long term. At least theoretically, having the decision state by state means more people can agree with their local legislation

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The senate minority leader already started talking about banning abortion across the entire US [0]. The states are gearing up to fight each other when they pass laws banning abortion for their citizens in other states like Texas either has done or is doing [1]. And on the other side you've got Connecticut allowing their citizens to counter-sue [2].

So no matter what side you're on it doesn't seem like it's about to be diffused. It seems like without federal law one way or the other states are going to be fighting each other. It sounds like chaos.

Edit: Also, although it's tempting to think of "red" and "blue" states, the minority party in each state is humongous. Almost 40% of New York state voted for Trump in 2020 [3]. Desantis in Florida only won his election by 49% [4]! And a higher minority percentage in Mississippi voted for Biden in 2020 than minority in New York voted for Trump [5]. As much as it is easy to think of there being separate political halves of the US it's just not the case. There is huge Democrat and Republican presence in every state.

[0] https://thehill.com/news/senate/3480725-mcconnell-says-natio...

[1] https://www.texastribune.org/2022/05/09/texas-republicans-ro...

[2] https://www.nytimes.com/2022/04/30/nyregion/connecticut-texa...

[3] https://en.wikipedia.org/wiki/2020_United_States_presidentia...

[4] https://en.wikipedia.org/wiki/2018_Florida_gubernatorial_ele...

[5] https://en.wikipedia.org/wiki/2020_United_States_presidentia...

Congress almost certainly does not have the power to ban abortion due to the tenth amendment. The supreme court ruling that the constitution gives no right to abortion means the power to create legislation about abortion is no longer granted to congress, which means it's reserved to the states under the tenth.

This seems a little naive considering Congress has found plenty of ways to coerce states into implementing laws (national speed limit which was later repealed, national drinking age, etc.) by threatening to withhold funding and these laws have stood up to a tenth amendment challenge. Similarly the GOP could threaten Medicaid funding for states if they don’t restrict abortion, which would be disastrous for the state and thus impossible to ignore.

National Federation of Independent Business v Sebelius disagrees. I believe all the highway funding stuff worked because they could claim interstate commerce.

In the case of Medicaid funding, I thought the outcome of that case was that the Federal government couldn't threaten existing Medicare funding but it was allowable that any future Medicaid expansion be denied to states if they didn't comply with the ACA. The makeup of the court has changed since then though and in general the conservative portion of the court did generally vote to say that coercive use of federal funding was unconstitutional, so hopefully that remains the same when the ideological nature of the case is reversed.

In any case, I hope you are right friend!

A "federal law" will go back and forth between ban and allow until which point the corrupt SCOTUS steps in and says the federal government is only empowered to ban it across the country, but cannot allow it across the country.

> I for one hope the Roe decision diffuses the abortion question in the long term.

That is obvious and absolute nonsense. The only thing it does is make the issue worse.

> At least theoretically, having the decision state by state means more people can agree with their local legislation

Not only will you always have people which do not agree with their legislation (even more so when that legislation is in no way representative thanks to voter suppression and gerrymandering), the GOP is already pivoting to trying for federal bans.

And that's ignoring the regressive states also already looking to push things further. Contraceptive bans are already coming up more and more as well.

In practice states do whatever they like, even if something is wildly unpopular with voters. Exhibit A: https://en.wikipedia.org/wiki/2018_Florida_Amendment_4#Imple...

I dont follow. Your link shows 65% support for the amendment. what am I missing?

Read the section that I linked to specifically. The state's implementation ensured that in practice, most felons wouldn't have their voting rights restored because they hadn't paid fees and fines. And in many cases, had no way to know how much they owed.

The idea of restoring voting rights was wildly popular (65% in favor) yet it didn't actually happen.

OK, I see what you are getting at now. I was expecting to see something about the public support for the implementation where voting is contingent on paying fines.

> I for one hope the Roe decision diffuses the abortion question in the long term.

If this is what you hope I don't think you've been paying attention. They're gutting the right to privacy with Roe, so they're coming after gay marriage and contraception next; their legality is predicated on exactly the right to privacy that the supreme court is about to gut. Religious conservatives are salivating at the thought of making Plan B and IUDs illegal. There's no diffusion going on; they lit a match next to a powder keg. Roe is just the beginning.

And if you think this is going to be left up to the states, Republicans are already talking about a nationwide ban on abortion. This has never been about leaving it up to the states, when one side believes they are fighting for the rights of unborn defenseless babies in the name of God.

The connection to the constitution was a lot more clear in the case of interracial or gay marriage than that of Roe. For Roe it took the 14th amendment:

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.

This was intepreteted in Roe to mean abortion bans are OK in the 1st trimester, conditional in the 2nd, and prohibited in the 3rd trimester.

Loving took this and said that means interracial couples and gays get equal legal protection and treatment to everyone else.

The recent supreme court appointments underline the idea that the constitution says what the court says. If they can reinterpret it for Roe they can reinterpret it for Loving.

Anything is "possible". My point is that there is a much more difficult case for reinterpretation of Loving.

On a practical level, I also think there is public support for gay an interracial marriage today in a way that there never was for Roe and later Casey. Most Americans cant even articulate what the abortion standards are.

> I also think there is public support for gay an interracial marriage today in a way that there never was for Roe and later Casey.

48% support abortion under certain circumstances, 32% for any circumstance. so ~80% support allowing abortion. [1]

94% support interracial marriage. [2]

70% support same-sex marriage. [3]

seems to follow the age of the legal decision. Loving was in 1967, Roe was in 1973, Obergefell in 2015.

[1] https://news.gallup.com/poll/1576/abortion.aspx

[2] https://news.gallup.com/poll/354638/approval-interracial-mar...

[3] https://news.gallup.com/poll/350486/record-high-support-same...

I think your data more or less supports my conclusion.

The idea that the conservative supreme court is about to overturn Loving is absurd. 94% of the population supports it and Clarence Thomas is in an interracial marriage himself for heavens sake.

Time since decision is a factor as you mention, but the rates of change are an order of magnitude different. Support for gay marriage has increased about 40% in 20 years. Interracial marriage increased 90%! in 70 years. For abortion, "legal under any circumstances" has seen the biggest change and increased ~10% in 50 years. The pro-live/pro-choice chart is even more telling showing stagnation for the last 20 years.

Abortion is a complex decision tree with 100s of options and 71% of people fall between the extremes of no-exception legal or illegal [1], and dissatisfaction with current laws is at an all time high [2]. I just don't see the same motivation to overturn Loving and Obergefell which are binary issues the overwhelming majority are happy with.

https://www.pewresearch.org/religion/2022/05/06/americans-vi...

https://news.gallup.com/poll/283916/dissatisfaction-abortion...

You don't see Roe itself as an example of "the constitution says what the court says"?

The conversation is quickly going to turn to a federal ban that the GOP will use to bring in voters.

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