Rather straining here I think?

Unfortunately, we have a pretty good idea of what a Romney presidency will be like for us as well. The former governor of Massachusetts has said he would remove Planned Parenthood\’s funding and overturn the supreme court case that legalised abortion……….If abortion is made illegal – a very real possibility under a Romney administration – women will seek out the procedure through unsafe means……..

No presidential administration is going to make abortion illegal. It\’s not actually possible for one to do so. Not alone, certainly. For the decision that it is legal came from the Supreme Court. Yes, a pretty odd decision, finding the right of privacy in the penumbra of the Constitution. But what this means is that it would be necessary to change the constitution to make abortion illegal. Or for the Supreme Court to reverse itself. Neither of these things are actually in the power of the presidency. For the first you\’ve got to get both houses of Congress and 3/4 of the States to go for it. For the second, well, the Supremes have to do that for themselves.

A Romney presidency just wouldn\’t, couldn\’t, make abortion illegal. Further, even if the constitution was changed or the Supremes reversed themselves it would still not be a Federal matter. It would be a State matters: as it was before Roe vs. Wade. For before that abortion was legal in some/many States. And it would remain a State matter because that\’s what the Constitution says: as with the Defence of Marriage Act being ruled unconstitutional. It\’s just fuck all to do with the Federal executive.

But then dragging out some \”feminist\” to witter about how appalling it would be if Obama loses 4 days before the election…..think they\’re worried much?

24 comments on “Rather straining here I think?

  1. Especially as Romney has made it clear he does not support a ban on abortion. He has long defied his Right on this subject.

    It is just desperation. Obama needs to get his supporters fired up enough to come out and vote. I would guess this is their last hope.

  2. A Romney presidency just wouldn’t, couldn’t, make abortion illegal.

    Not directly, no – but with the office of President comes the power to appoint judges to SCOTUS if a vacancy arises and, currently, things are very delicately poised on Roe in 5-4 split.

    Throw in the fact that one of the five in favour of Roe, Justice Ginsberg, is 79 and has had two previous bouts of cancer and its not difficult to see why some people over the pond are concerned by the possibility of a Republican win.

    Tim adds: But that doesn’t cover the other points made. Absent a Supreme ruling that abortion is legal does not mean that the Feds get to make the rules on whether it is illegal. That devolves down to the States. The Federal Govt (as a whole, all three arms) can indeed insist that it’s legal. They cannot insist that it is illegal.

  3. @3

    True, but then the Roe decision was patently nonsense. I support abortion, or rather support bodily sovereignty, but the idea that the Constitution contains the right to an abortion either directly or implicitly can be proved wrong simply by reading the thing.

  4. Tim adds: … The Federal Govt (as a whole, all three arms) can indeed insist that it’s legal. They cannot insist that it is illegal.

    The Federal government can insist that growing corn in your own backyard is interstate commerce. I don’t see them have any trouble deciding that being paid to shove a metal object a place metal objects rare go is as well. Hence they probably could ban it.

    But of course they don’t want to and wouldn’t. The Republicans are hypocritical on abortion. Their voters may want a ban but the Republican Party has not lifted a finger to do so. They have not promised a Constitutional amendment, it was not part of the Contract with America. They say they will ban it, but then they go and appoint pro-abortion members of the Supreme Court. I have a greater chance of being the next Chief Rabbi than of abortion being made illegal in the US.

  5. Oxonymous is right: whatever you think of abortion (and I’m not agin it) Wade-Roe was a putsch by the Supreme Court, because the law-making powers on abortion reside with the legislatures of the States, not the union.

    Still, it’s standard misbehaviour in American politics to pretend that Presidents have law-making powers that they don’t have, though Obama’s self-award of the power to assassinate anyone in the world whenever he fancies is a counter-example of sorts.

  6. Actually, dearieme has the best point yet. The President has no power to introduce legislation, only the Congress can do that. The President’s role in the legislative process is simply to say yay or nay at the end.

    But then I suppose that point won’t wash with the sprt of people who poo on the Constitution as a matter of course anyway.

  7. It’s true that Romney wants to overturn Roe v Wade. It’s very likely that if he wins this election he’ll be appointing Supreme Court Justices with the power to do that. And if the Supreme Court overturns Roe v Wade, several states will choose (or have already chosen) to implement near-total bans on abortion.

    I think it pretty clear that the US constitution forbids states to interfere in decisions on medical treatment made by a patient and their doctor.

    Incidentally, while both sides are keen to win this election, and the result is certainly in doubt, you have to be a fantasist to describe Obama’s side as desperate. Look at the betting markets.

  8. “I think it pretty clear that the US constitution forbids states to interfere in decisions on medical treatment made by a patient and their doctor.”

    Where does it say that? That would argue that medical marijuana usage, euthanasia and abortion up to the minute of birth are constitutional rights.

    That’s not to say that people don’t have the right to abortion, or any of the others, but simply that the Constitution doesn’t guarantee it, 10th amendment etc.

  9. its pretty clear to people like me that the constitution forbids that interference, unfortunately the Supreme Court and the rest of the state and federal government strongly disagree.

    Its why I still need a prescription for eyeglasses or thyroid hormones, why marijuana is still illegal throughout the country, and why doctors go to jail if they prescribe more pain medication than the DEA thinks they should.

  10. Just out of interest, since I don’t know… the Supreme Court made abortion legal, but who decides on the details, like time limits? Do they do that as well?

  11. “. . .And it would remain a State matter because that’s what the Constitution says: as with the Defence of Marriage Act being ruled unconstitutional. It’s just fuck all to do with the Federal executive. . .”

    “Commerce clause” . . . “necessary and proper”

    Those two little bits in the constitution have been enough to erode the 1st, 2nd, 4th, 5th, 6th, 9th, and 10th amendments.

    And DOMA whasn’t ruled unconstitutional because its not a federal matter. The SC almost never rules against the federal government simply because its over-reaching its “official” power. DOMA was struck down because it fell afoul of the equal protection clause.

  12. “Just out of interest, since I don’t know… the Supreme Court made abortion legal, but who decides on the details, like time limits? Do they do that as well?”

    Its a state by state matter, though with the caveat that (since a right to abortion is recognized) the Justice Department can step in for states that try for heavy restrictions (as it would be considered a civil rights issue).

    This isn’t unusual for SC rulings – they’ll recognize a right *and* the potential need for restrictions on that right but will provide no immediate guidance on where the line is to be drawn. That usually comes through individual jurisdictions trying and getting slapped down until some sort of consensus is reached.

  13. To be more precise, the Fourteenth Amendment “Nor shall any State deprive any person of life, liberty, or property, without due process of law…” prevents states interfering in any medical procedure which increases a patient’s life expectancy.

    On that basis, abortion would be constitutionally protected at any time when it’s safer than childbirth.

    On the other end, if a fetus is a person, abortion would be illegal unless a choice had to be made between the mother’s life and the fetus.

    However, that is not the Supreme Court’s reasoning. IANASCJ.

  14. Uh, PaulB, that’s not how this works here.

    State and federal governments are capable of, and have actually been, interfering with medical procedures which increase a patients life expectancy for longer than we’ve all been alive.

    The 14th amendment is interpreted as refering to criminal matters, where at least some semblance of due process is required.

    Simple, private medical matters can and are interefered with all the time.

  15. Incidentally, while both sides are keen to win this election, and the result is certainly in doubt, you have to be a fantasist to describe Obama’s side as desperate. Look at the betting markets.

    Not sure the betting markets tell you much at this stage. In the early stages of any event, the betting odds *might* represent the aggregate opinion of folk who have taken an interest; but closer to the event, the odds will to some extent – and this can be to a great extent – be affected by the bets that have already been placed.

    I saw this in point-to-point races in the UK years ago, when somebody plonked a ton of money on a long-odds horse, the bookie immediately dropped the odds to avoid being too exposed should the horse come in. This had nothing to do with whether he or everyone thought the horse would win or not, it was simply an adjustment of the odds to balance those bets already made.

    I’m not necessarily saying this is the case here, but using betting odds as an indication of likelihood has its dangers.

  16. Tim N, I suspect the betting market on the US presidential election is a little larger and more liquid than that for the 3.30 at Little Snoring on cold day in March.

  17. Tim N, I suspect the betting market on the US presidential election is a little larger and more liquid than that for the 3.30 at Little Snoring on cold day in March.

    Possibly! :)

  18. Is this desperate scaremongering by Obama supporters? Maybe. But before we decide who is more desperate, let’s all spend an hour or two in the company of Fox News.

    I can’t imagine the Republicans banning abortion. As much as they love Jesus, I reckon they love money a bit more. The last thing America needs, economically speaking, is loads more unwanted poor children.

  19. Agamemmon: yes, I accept that. I think it’s pretty difficult to argue that every Supreme Court ruling is consistent. But, in isolation, it’s not obvious that the outcome of Roe v Wade was wrong.

  20. Ian B (#11) asked “Just out of interest, since I don’t know… the Supreme Court made abortion legal, but who decides on the details, like time limits? Do they do that as well?”

    From memory, Roe v Wade actually said:
    – in the first 3 months abortion was legal and constitutionally protected;
    – in the last 3 months it was illegal;
    – in the middle 3 months each State could set its own law.

    (that has been changed by subsequent cases)

    Whether or not that is a good system I do not know, but how you derive it from the constitution is beyond all understanding.

  21. Tim adds: But that doesn’t cover the other points made. Absent a Supreme ruling that abortion is legal does not mean that the Feds get to make the rules on whether it is illegal. That devolves down to the States. The Federal Govt (as a whole, all three arms) can indeed insist that it’s legal. They cannot insist that it is illegal.

    Yes, they can. Just as the supreme court discovered a right to privacy in the constitution, and parlayed that into a right to an abortion, they can find that the right to life extends to a foetus.

    It wouldn’t happen – at least immediately. Appoint a couple of social conservatives to the court, and you’ll probably get Roe overturned, at which point about half the states would put stringent limitations on abortion or even a complete ban, and the other half would leave the status quo untouched.

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