Victoria Noorus, a professor at the Georgetown Law Center, was the chief lawyer for former Vice President Joe Biden of the Department of Justice. Was there. She is a Special Advisor to the Ministry of Justice and the House Judiciary Committee. Her views expressed in this commentary are her own. SeeOther Opinions on CNN.
(CNN)President Joe Biden and many others legitimately demand Congress to codify the Roe v. Wade case. And select abortion, which has established national rights by law. He said Thursday that he would support the filibuster"to codify the Roe v. Wade case".
However, there is a problem in thinking that, constitutionally, federal law will solve this problem and prevent abortion from returning to the Supreme Court. Even if Congress passes a law codifying the Roe v. Wade case, it does not mean that the Supreme Court of Dobbs, which has broken the precedent, does not have five votes to strike the new law.
The federal Roe-protected draftsman must not be a starry sky. First of all, people should stop using the term "codified egg". This phrase can be misleading. Statutoryization in this case means establishing the right to statutory law, which is possible, but the term "Roe" refers to the Supreme Court's decision, and Congress overturns the decision of a particular Supreme Court. , Do not have the authority to revive the overturned case.
Second, if abortion is a crime, as opponents claim, Morrison's reasoning applies, except for parliamentary action. Morrison modified the court's old liberal commerce analysis-Parliament was able to legislate even those vaguely related to commerce-and banned Congress from engaging in local non-economic activities. .. Just as Morrison's court described a gender-based attack as a crime, a court devoted to defeating Congress's ability to recover Law described abortion in uneconomical terms as an attack on fetal life. can. At that point, the downstream "impact" on women and national commerce is not important to constitutional issues.
Sad but true: The Constitution does not give you the right to dismiss you because you are pregnant. That right exists only for Congress, and because the right focused on commerce. Who knew that commodities received more federal equality protection than women, which is essentially what Dobbs holds.
Some might say this is fine. If Congress cannot codify Law, it cannot impose a national abortion ban. But that does not come from the existing Supreme Court case law. Depending on how the law is drafted, courts can invalidate Roe's codification and uphold the country's abortion ban. How.
The Supreme Court can determine constitutional issues and may invalidate Roe's codification. On the other hand, if a country's ban is written in the right way, it can survive the attack and find a simple home within the commerce clause. Such bans focus on commerce-except for abortion or uncompensated abortion service payments. The law is more focused on commerce than the current Roe codification bill.
Is there an answer to this for Roe's codification proponents? yes. Very careful drafting, Senate and House hearing rafts, and clear ideas about opponents. The bill cannot be said to be changing the Constitution and cannot rely on the term "right to abortion". After Dobbs, there is nothing.
Draftsmen need to focus on words that are already upheld under the commerce clause, which includes the regulation of medical procedures. In fact, we need to include words that specifically reject Morrison's narrow analysis. "Parliament admits that abortion is an economic activity and cannot be reduced to operations or assault."
Hearings are to provide factual evidence of the link between commerce and abortion. Must be carried out at.
Members need to emphasize why women's real life has constitutional protection that goes beyond the constitutional protection of potential life. They refute Dobbs's analysis of the Fourteenth Amendment's Equal Protection Clause, where women are equal "citizens" under the "citizenship" clause of the amendment, empowering women to make medical decisions. It must be made clear that denying violates the fix. The
bill must include language calling for the "privilege and exemption" clauses of the 14th and 9th Amendments, which were not covered by the majority of Dobbs. Because these texts may uphold the right to abortion. .. They should refute the various originalist arguments made in the opinion of unstable history.
Conclusion: The court is not "out of the way" from the abortion business. It's just getting started.