Comments Elsewhere

It’s a common belief – one I’ve endorsed in the past – that if Roe v Wade is overturned, the result won’t be the nationwide banning of abortion in the USA, but rather a return to state-by-state rules. So abortion might be outlawed in Alabama, but it would remain legal in New York, and so on.

But lately I’m not so sure. The “Partial Birth” Abortion ban is a nationwide ban, enacted by the federal congress. Yet no one seems to be making a serious case that the PBA ban is unconstitutional because Congress has no authority to pass a nationwide abortion ban. (It does show what hypocrites “federalist” Republicans are, though.)

This is certainly something to fret over, but I think a lot depends on how the Court would overturn it, if it were to do so. Certainly I don’t doubt that the hard Right in Congress would have no qualms at all about passing a federal abortion ban, but the way that the Rightists on the Court think is not necessarily the same as the way that the Rightists in Congress think. Rehnquist and Thomas, for example, would certainly be in anti-Roe majority if one emerged (if one does before Rehnquist retires, at any rate), but I think it’s pretty likely that if either of them were in the position of writing the majority opinion, the precedents and arguments they’d be resting on would mostly be arguments resting on federalist grounds, which would also give grounds for shutting the door on a federal ban. (Scalia would be more worrisome, since he is much more of a cultural royalist than either of the other court ‘conservatives.’)

That doesn’t mean that a rollback of Roe would be good news of course; it would be terrible news. But I’m not sure that a federal ban would be all that likely to immediately ensue.