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Comment by dvt | Hacker News Reader

Almost every serious non-partisan legal scholar agrees that Roe v. Wade is on tenuous legal footing. It's purely a logical argument, and it doesn't follow very well from the Constitution. We have a very simple mechanism to rectify this: amend the Constitution. But that ship has long sailed, and the problem now is stare decisis†, which complicates things further. So there's a very real justification for keeping Roe in spite of its shortcomings. But that's neither here nor there.

The issue isn't that people don't understand arguments, it's that they misrepresent them. A rational, reasoned, mature, back-and-forth debate on abortion won't get you views and clicks, so of course no one does it. Panem et circenses.

† And of course Casey, which reaffirmed Roe.

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The fundamental problem, which isn't going to get addressed short of the country falling apart, most likely, is that our particular system of government is a bit shit, and keeps getting worse the better everyone gets at gaming it.

Its very shittiness is why we can't realistically fix it. We've been relying on courts really stretching reasoning on the constitution to its breaking point, just to be able to have a mostly-modern state & economy, in terms of function and outcomes, and it's been like that for most of a century. Maybe it would've been better if the courts hadn't done that and had instead forced us to a crisis point much sooner, so we'd have to actually fix our governmental system, but who knows what suffering that might have caused.

Concerted attempts to change the course of the courts might finally bring us that crisis, though. We'll see. If they're maximally successful, I think it'll have to, because the US is gonna go downhill fast if kinda-shaky 20th century rulings supporting broadened federal power are wiped out en masse.

> our particular system of government is a bit shit, and keeps getting worse the better everyone gets at gaming it.

I agree that a "Union of States," being profoundly anti-federalist, is a pretty shit way of running a homogeneous world power with a shared language, shared culture, and (for the most part) shared ideals.

The US fundamentally changed after the Civil War (which was probably the breaking point of anti-federalism) but unfortunately the Constitution didn't change along with it.

I can't tell if you're advocating for more centralism, or less.

The comment seems to be more descriptive than prescriptive.

The US is more akin to the EU than it is to a normal country. I don't think that is necessarily good or bad, it just is. But I don't know if I understand your bit about shared culture, language, and ideas... Would that imply that we should share a govt with the UK and Australia? Or if oceans are the breaking point, at least Canada?

But you can leave the EU without warring for it

I think the intersection of culture and ideals between different regions in the US is too small to merit a description of the country as homogenous. And that intersection is becoming increasingly smaller with the collapse of mass media and the balkanization of media preferences (news and entertainment).

We have a shared cultural history, but we can't even come close to a consensus on its interpretation.

We do have a simple method, in amending the Constitution, but that’s been incredibly difficult to do for pretty much the entire history of the United States. For an issue like this one, it’s basically impossible.

The true simple solution would have been to codify the right to an abortion in federal law, as candidate Obama promised to do but President Obama failed to even attempt. Recently I’ve been introduced to the hypothetical that maybe the Democrats didn’t really want to do that because fear mongering about Republicans overturning Roe was such an effective fundraising tool. I wouldn’t be surprised if that was the case.

Your hypothetical doesn't make much sense to me because it assumes Obama had more power than he did- Obama wasn't elected king of America.

You need 60 votes in the senate to pass anything unless you eliminate the filibuster (the so called nuclear option). Obama had 60 Democrats exactly which means if even a single Democrat was willing to vote against a federal right to abortion law Obama couldn't have done it.

Democrats controlled the House and Senate from 2009 to 2011. They could have passed it then without even needing to eliminate the filibuster. But they didn’t even try.

This is true but also not quite.

First, they only had 59% of the House, not enough to overcome filibuster.

Second, they did have 60% in the Senate, but only for a few months in 2009, and it's not obvious that it was an "overcome filibuster on federal abortion laws" 60%. 2009 was the year Al Franken won a Senate seat in Minnesota after a recount and a Minnesota Supreme Court case, so he wasn't seated until late April. A couple of months later, Ted Kennedy died and was replaced by an interim appointee; Scott Brown, a Republican, won the special election to replace him that winter. They also had Arlen Specter - a Republican - caucusing with them to make that 60. He was a "pro-choice but personally opposed" legislator and may not have voted with the Democrats on this issue.

So yeah, they didn't try. But I think it's very likely they didn't try because they felt strongly that they would not be successful.

They had 60 Senate seats but not 60 votes. For every vote you still need 60 votes to prevent a filibuster regardless of whether your party has the majority of seats. This is why the public option (and single payer) was killed in the ACA. They didn't have the 60 votes to override a filibuster (Lieberman was, I believe, the main holdout)

An amendment seems ideal, but wouldn't a regular federal law also get the job done? They could even strengthen it like the Federal Reserve Act: "The right to amend, alter, or repeal this Act is hereby expressly reserved."

The federal government derives much of it's power over the states using a controversial interpretation of the commerce clause:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

https://www.law.cornell.edu/wex/commerce_clause

Abortion tends to be single state centric, meaning the person getting the abortion and the abortion clinic are in the same state. Because of this, the federal government couldn't pass a law that only affects intrastate commerce.

At least that's my understanding of it.

FWIW, qualified immunity was also an immunity created from whole cloth by the Supreme Court. Apparently interpreting new "laws" like this was popular from the court in the 1960s and 1970s. Much of today's police brutality and lack of accountability stems from this decision.

https://en.wikipedia.org/wiki/Qualified_immunity

> The federal government derives much of it's power over the states using a controversial interpretation of the commerce clause

Given that expansive interpretations of the commerce clause seems to be the status quo, doesn't that suggest that a federal abortion law is possible? It should be easy for lawyers and politicians to find some tortured meaning of interstate commerce that includes a woman getting an abortion in her own state. They seem to do this sort of thing all the time.

Most of the time they just bribe the states. That's how the drinking age moving from 18 to 21 occurred. The federal government offered highway fund money (or threatened to remove it) if states increased the drinking age from 18 to 21.

https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_...

Everybody wants federal highway funding.

"If you want Medicare funding, you will..." could easily backfire, given that conservatives are not fond of that program either.

A lot of state governors refused to take Medicare funding for the ACA and it was a very unpopular move. I think it's mainly the conservative politicians that don't like it because they have to put it in their budget. Conservative citizens, by and large, particularly older ones like it, but it's part of the conservative "package." Social security is along the same lines. As soon as a conservative politician starts talking about cutting social security, his or her days are numbered.

The federal government can always withhold funding to states that don't implement their laws the way they want them too (which is how the federal drinking age is enforced... states that were to set it to less than 21 don't get funding for freeways/roads/etc)

Doesn't the commerce clause cover basically everything? You can't grow wheat to feed your own horses because it affects interstate commerce.

You can't even grow your own weed, inasmuch as it affects the prices on an interstate black market.

https://en.wikipedia.org/wiki/Gonzales_v._Raich

Which is absolute hogwash and FDR's most unfortunate mistake. It lead us to the war on drugs and a barrage of unconstitutional gun laws that should have all been outside the feds' perview.

I think that oversells it. The current interpretation of the commerce clause is not particularly controversial in contemporary American politics (both dominant political parties are "big Federal government" parties; they just disagree on how to apply the USG's heft.)

> Abortion tends to be single state centric, meaning the person getting the abortion and the abortion clinic are in the same state. Because of this, the federal government couldn't pass a law that only affects intrastate commerce.

It's not this straightforward. One of the initial challenges to the 1964 CRA was that intrastate racial discrimination fell outside of the purview of the Federal government; SCOTUS has consistently determined that state acts may not restrict rights where interstate activity is likely (e.g. motor lodges, economic activities near state borders, etc.).

On net, I think the 9th Amendment provides perfectly sufficient cover for a right to abortion, and that it would be reasonable to interpret the nonenumeration clause in a similar manner to the commerce clause (i.e., permitting federal law where required to protect rights that individual states might wish to infringe). But that's a parallel justification.

> The current interpretation of the commerce clause is not particularly controversial in contemporary American politics (both dominant political parties are "big Federal government" parties; they just disagree on how to apply the USG's heft.)

It's not controversial to the layer of government to which derives power from it, certainly. I think politicians in states have issues with it when it's convenient.

>I think the 9th Amendment provides perfectly sufficient cover for a right to abortion, and that it would be reasonable to interpret the nonenumeration clause in a similar manner to the commerce clause (i.e., permitting federal law where required to protect rights that individual states might wish to infringe). But that's a parallel justification.

I think it will until states start banning abortion, which is their right (assuming Roe is overturned). I don't think the federal government will have power to override the decision of the states. It would be nice to see a strong interpretation for the 9th amendment come into action though. It might finally end moral crusades like the drug war.

A very broad application of the commerce clause isn't that controversial, it's also pretty obvious/logical since basically everything effects interstate commerce

> Almost every serious non-partisan legal scholar agrees that Roe v. Wade is on tenuous legal footing.

Citation needed.

> Almost every serious non-partisan legal scholar agrees that Roe v. Wade is on tenuous legal footing.

Citation needed. Also, would love to see how you are defining "serious non-partisan legal scholar." Seems like a whole bunch of adjectives you can use to disregard someone. As it stands, you can literally be talking about one person and be telling the truth depending on how you define those words.

Pretty good article that explains the shaky legal foundation of Roe v. Wade: https://www.latimes.com/politics/story/2022-05-03/how-roe-vs...

Even Ruth Ginsburg stated the reasoning in Roe was incorrect.

Did she say the reasoning was wrong, or merely that it wasn't ideal? As far as I know, she took umbrage with Roe v Wade being physician focused rather than woman focused. In other words, that the provides for a physicians right to perform abortions more than it does a woman's right to receive abortions.

> She also argued for a different legal rationale, one based on equal rights for women rather than privacy. Laws banning abortion had been written by men and were enforced by men, but their burden fell entirely on women.

RBG was a brilliant legal mind and invoking the Equal Protection Clause (which is what she argued for) would have been orders of magnitude more robust than invoking some vague "right to privacy" that's barely in the Constitution to begin with.

That is plainly untrue. Tons of legal scholars think the logic is extremely sound. The shortcoming with Roe is that due to a combination of bad luck and not willing to be as ruthless as Republicans on supreme court appointments. The arguments are irrelevant this is about power and supreme court appointments not logic.

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