task0778
Diamond Member
In order to adopt a law codifying Roe, Congress must act either under the authority of Section 5 of the 14th Amendment, which authorizes Congress to pass laws enforcing the amendment’s guarantees of liberty, equality and due process, or the commerce clause, which grants Congress broad power to regulate foreign and interstate commerce.
Neither approach is likely to withstand scrutiny by the current Supreme Court.
In 1997, the court held that Congress can’t enact laws under Section 5 of the 14th Amendment for the purpose of protecting a right that the court itself has not recognized. Since this court denies that a woman has a right to control her own reproduction, it’s futile to try to protect that right under Section 5.
Alternatively, Congress relied on the commerce clause to protect women’s rights in the Violence Against Women Act, a landmark federal law enacted in 1994 to govern investigations and prosecutions of violent crimes against women. But in the Morrison decision in 2000, the Supreme Court struck down a key provision of it. In the court’s narrow view, there was nothing commercial or economic about spousal abuse, and therefore Congress could not regulate it.
Not that such a law (already passed in the House) can get passed in the Senate anyway, but what about same sex marriage or interracial marriage or contraceptives? The House has already passed such legislation and there is some support for them in the Senate, but would those laws get struck down too? Should they? Mind you, I'm do support those laws if there is no BS attached for other purposes, but from a legal constitutional basis should we allow federal laws to stand if the Congress doesn't have the authority to pass such laws that have no anchor in the Constitution? Such matters are supposed to be left to the states to decide. IOW, Congress should not have the right to create rights for anything for which they do not have jurisdiction over.
Neither approach is likely to withstand scrutiny by the current Supreme Court.
In 1997, the court held that Congress can’t enact laws under Section 5 of the 14th Amendment for the purpose of protecting a right that the court itself has not recognized. Since this court denies that a woman has a right to control her own reproduction, it’s futile to try to protect that right under Section 5.
Alternatively, Congress relied on the commerce clause to protect women’s rights in the Violence Against Women Act, a landmark federal law enacted in 1994 to govern investigations and prosecutions of violent crimes against women. But in the Morrison decision in 2000, the Supreme Court struck down a key provision of it. In the court’s narrow view, there was nothing commercial or economic about spousal abuse, and therefore Congress could not regulate it.
Not that such a law (already passed in the House) can get passed in the Senate anyway, but what about same sex marriage or interracial marriage or contraceptives? The House has already passed such legislation and there is some support for them in the Senate, but would those laws get struck down too? Should they? Mind you, I'm do support those laws if there is no BS attached for other purposes, but from a legal constitutional basis should we allow federal laws to stand if the Congress doesn't have the authority to pass such laws that have no anchor in the Constitution? Such matters are supposed to be left to the states to decide. IOW, Congress should not have the right to create rights for anything for which they do not have jurisdiction over.
