As everyone knows by now, on Wednesday the Supreme Court issued one of the most important abortion decisions in many years, upholding the so-called “Partial-Birth Abortion Act of 2003.” The replacement of Justice O’Connor with Justice Alito was the difference between this case and Stenberg v. Carhart, decided just a few years ago, which struck down a very similar law. So much for Alito’s and Roberts’ fealty to stare decisis.
In any event, I thought it would be worth recalling the signing ceremony for the Act that the Court upheld on Wednesday.
Behind President Bush, from left to right, are an old white dude, an old white dude, an old white dude, an old white dude, an old white dude, an old white dude, an old white dude, an old white dude, and an old white dude. That’s what the Act was about, and that’s pretty much what Wednesday’s decision was about (it must of course be acknowledged that Justice Thomas does not match the “old white dude” descriptor).
(For the curious, the actual names of the old white dudes in the photo are, left to right, some guy I don’t recognize, another guy I don’t recognize, then-Speaker Denny Hastert, Senator Orrin Hatch, Rep. James Sensenbrenner, then-Senator Rick Santorum, Rep. James Oberstar, then-Sen. Mike DeWine, and then-Rep. Tom DeLay. A motley crew indeed.)
I think Partial Birth Abortion is a particularly gruesome procedure and I am glad it is outlawed. Crushing a skull, or stabbing it with scissors, so that you can suck out the brain of an infant who is only inches away from being fully delivered is just absolutely horrendous.
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That said, if the Republican Congress that passed the bill truly wanted reduce the number of abortions in the country they could have passed a lot more effective bill. They could have fully funded WIC. They could have eliminated the sunset provision on the adoption tax credits. They could have funded day care centers on college campuses. They could have passed the Democrats for Life’s Pregnant Women Support Act.
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Instead they passed a law that is all heat and no light. This got them some great headlines, and I’m sure the direct mail pieces are already in mailboxes asking for money, but its not going to do much to reduce the number of women who face unplanned pregnancies or to help them carry their children to term once they find themselves in that situation. It certainly isn’t going to help any women with a child that wasn’t planned raise it once it is born.
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I’m glad this abhorrent procedure is recorded in law books as the crime that it truly is, but I also think its a crime that the Congress spent so much time and effort, without getting any real results. Also, just for the record, Jim Oberstar is on stage and he is a Democrat. I think he is co-chairman of the Congressional pro-life caucus.
There are many possible serious pregnancy problems. It is difficult for me to understand how anyone can read about such cases and not recognize that any legislation about abortion must contain an exception for the life and health of the mother. You would have us believe that all fetuses are “inches away” from turning into wonderfully healthy children. Do you believe that yourself?
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Doesn’t it make sense that, in the very unlikely case of a serious problem (less than 1%), a doctor should be able to make a choice of which procedure is best for the woman’s survival?
and they couldn’t get a unified answer from the medical community, as you can read in Gonzales with my emphasis:
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Also, there is an exception for the life of the mother included. And no, I don’t believe that they are all inches away from being wonderfully healthy children. My cousin with severe Down’s Syndrome has had more health problems in his short life than you can possibly imagine. The children killed by partial birth abortion, healthy or not, are only inches away from being fully delivered. Do you not believe that?
That Raw Story used to have? “Rick Santorum: One of the most brilliant minds of the 13th century.” Feels like the middle ages to me today.
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I thought the way this group of “old whites dudes” wrote the bill was a very cynical attempt to provide the base with red meat, but not actually pass the ban into law. By which I mean that everything I read at the time indicated that without the exception for the life of the mother the ban was a no go and completely unconstitutional. It’s was just politics so that the right wing “old white dudes” could say, “we tried” when they faced their based in the election. I never in a million years thought that it would fly in a legal challenge.
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What a suckey week. Good diary, I liked the frame.
….for the life of the mother in the law. There is not an exception for the health of the mother. If a pregnant woman’s life is in danger the procedure is permissible, but if her health is in danger but her life is not threatened it is not.
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I think, ultimately, that this law is meant 1) to chip away at Roe and 2) to scare doctors and make them less likely to be willing to perform abortions in the second trimester for fear of being prosecuted.
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Mission accomplished on goal number one. As for the second issue, I fully expect the witch hunt to start very soon. This is, I’m sure, the reason why the justice dept. has been filled with Regent University Law School graduates, and why Gonzales is not going to resign. This, I suspect, is the real reason why he was hired. I would bet dollars to donuts that the administration has been planning this for years and patiently waiting for the Court to give them the go ahead. Why else was Harriet Miers ever nominated, with a wink and a nudge no less? I would also not be the least surprised to find out that the eight US Attorneys fired were somehow perceived to not be on board with this mission. I fully expect a thorough investigation of abortions performed after this act was signed to begin in short order. There are probably already people in place to point fingers. Of course, the mens rea element of the law is fairly clear. A doctor would have to start a procedure intending to perform it in the manner described in the law to be found guilty. If a doctor started intending to do a traditional D&E and then had to perform a procedure like the one described in the law because of complications or issues arising in the procedure she would not have offended the law. There will be few if any convictions, but fear will be struck in the hearts of physicians that perform abortions and that, I fear, is the real immediate goal of this legislation.
Nice theory, but they aren’t that good, or smart. They are inept. Incompetent.
…but this one. A very concerted and well organized effort to overturn Roe has been in action since it was decided. Just wait and see.
I was wrong to post that but it does come down to the same thing. A doctor can’t be sure that you’ll die if you carry the pregnancy to term. They can only give you an opinion that you’re health is in danger and you need to make a serious choice. I guess there are some gray areas where only health and not life is at risk like diabetics, but it’s still dicey. Doctors base their treatments and prognosis on statistics and don’t always have immutable proof to back up their opinions.
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It’s a catch-22 and as you stated it will have a chilling effect on physicians. It’ll be like the procedure is completely non-existent and they’ll not even discuss it with their patients out of fear of prosecution.
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As far as your other comments, I agree. I don’t know if they’ve thought about it that much, but Roe is the target. Now that they have this precedent they’ll work from here.
Seems like you’re confusing the just cause of greater power for racial and ethnic minorities with the just cause of reproductive rights. But what leads you to believe the two have anything to do with each other? The poll data suggests that they don’t.
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Or were you just dying to say as many nasty things about the gents in the photo as possible, however irrelevant?
but I would imagine males of every race and age are capable of similar levels of ‘nasty’ as white ones.
I was simply stating facts. Other than the possible quibble raised by Joe about Santorum being “old,” do you think my descriptions at all inaccurate?
who voted for the bill
It was our Dear Leader. BushCo obviously could have invited her to stand behind W at the signing ceremony. But they didn’t. Oops.
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Evidently, President Bush omitted her from the guest list because he didn’t think it important to have her up there. His choice, not mine.
I’m sorry, I thought that by repeating the phrase “old white dude” nine times in a row you were trying to demagogue the point that the assault on abortion rights owes itself to the predominantly old white male nature of the conservative political establishment.
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But you were just captioning a picture. Like in those write-in contests at the back of the New Yorker. Got it.
Again I say, “moi?”
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You’re quite right. Just like the New Yorker caption contest.
Do you think a policymaker’s skin color relevant to the abortion rights debate?
In that abortions aren’t distributed uniformly across races. This shouldn’t be surprising, since they’re not distributed uniformly across economic standing or education, either.
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Since, in aggregate, blacks tend to be more likely to be poor, and more likely to be high school dropouts, it’s not surprising that blacks get abortions at higher rates than whites.
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In any case, an old white male politician is as far away from the situation as possible. He’s not a woman, he’s not young, he’s not under-educated, and he’s not poor. He’s hasn’t walked a mile in any of those four pairs of shoes in a long time, if ever.
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I would tend to argue that upwardly mobile white girls have more of the abortions, because a baby just doesn’t fit in with their “life plan”.
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But I don’t have the facts. So if you could enlighten me with real numbers that would be swell.
women do. your mischoice of terminology speaks volumes about your view on women: they are children who must be told what to do with their bodies. it is emblematic of the reason behind the need for this diary.
Read them all for yourself.
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As for to the age of those having abortions, most are college aged women (20-24) at 32%. 19% of abortions were performed on teenage girls. Of that 19%, 3.5% were girls under 15, 6% were 15, 11% were 16, 17% were 17, 28% were 18 and 36% were 19.
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As to their race:
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A few other facts from the CDC:
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*79% of women/ girls who have an abortion are unmarried
*In 1972 (the last year before Roe) 39 women/ girls died from illegal abortions. Since then 351 have died from legal ones.
*The highest ratio of abortions to live births is among teenage girls. The lowest is women 30-34.
they never once used the word “girl” to describe sexually mature women. the fact that you chose to inject the term “girl” in your comments is proof again that some people feel the need to dominate or minimize women by treating them like children. same thing whites did (some still do) to blacks. what do you think is the source for your insecurity, Kai?
I’m not trying to dominate or minimize anyone, I just don’t consider a 15 year old to be a woman. I don’t think most people do either. The average age for menarche is 12 years, 9 months. Do you really consider a 12 year old to be a woman and not a girl?
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I took the direct quote on race because I quickly found it. In scanning the document I didn’t see a narrative about age so I took the numbers from the graphs and transcribed them.
perhaps we are working off of different definitions for ‘girl’ and ‘woman’?
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i will agree that psychologically, a 12 year old is most likely still a girl. but if she is pregnant or able to be, she is functionally a woman. it is the functional definition i am using. it is apparently the definition the CDC uses too. i should have laid out my definition before jumping to conclusions about yours. sorry about that. i apologize for jumping on you there.
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but this still leaves me wondering – was Eabo only talking about white 13 year olds when he said white girls have more abortions than minority young women? methinks not. perhaps he will weight in with an answer…
I was at a party last weekend with a professor of psychology at the most prestigious university in the region (thats not saying much about how good it is, but the area is very, very beautiful). She happened to remark that most people today don’t consider themselves to be an adult until their mid to late 20s. I think a 12 year old who is able to get pregnant is functionally a girl, not functionally a woman. Girls can get pregnant.
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On a related note, I think it’s a cruel irony that physically children are maturing earlier and earlier while we prolong their adolescence longer and longer. Throw in a hypersexualized culture and its just a mix for disaster.
and I’m 20..so my dad can’t be “old”. That said…
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On stare decisis: it’s not mandated by the Constitution, and if there is a question of the Constitutionality of the precedent, it should be reviewed. Some states found the ban unconstitutional, so the state appealed and it went to the Supreme Court, so the unconstitutionality of the ban was not per se precedent at that point in time anyways.
your point about stare decisis is, I’m sad to say, incoherent. There is, by definition, no “question” about the “constitutionality” of a Supreme Court precedent, because those are the last word on the meaning of the Constitution. Of course, subsequent courts may conclude that a prior decision was wrongly decided, at which point the doctrine of stare decisis comes into play. Stare decisis only matters when a prior decision is judged by the current occupants of the Court to have been wrong — if it’s right, of course you’d follow it, so stare decisis doesn’t matter.
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You’re 20. Enjoy it while you can. But leave the niceties of legal doctrine to those who at least have graduated from college.
It was probably incoherent because I thought you were saying that the review of the appellate decision on the PBA ban was violating stare decisis. After re-reading a few times I see what you were saying (roe v wade, duh, joe..think!)
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However, I don’t think this applies still…that would be the same as saying outlawing the electric chair would be violating Texas’ right to execute prisoners. The right is still there, but a means to achieve the end are removed for it’s barbaric nature (even though I think executions are barbaric by definition.)
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And speaking about niceties of legal doctrine…I’m doing my term paper for Bus. Law on the validity of a Constitutional right to privacy with applications of various jurisprudence.
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I would LOVE to enjoy being 20, but school keeps getting in the way =)
Stare decisis is a dead horse. When an aggregiously wrong decision has been handed down, the Courts have an obligation to right it.
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This is just the beginning, folks.
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Get used to the idea that Roe, as you know it, is history. This is the beginning of the end to unfettered abortion-on-demand. Strict regulation is just ahead. Yay!
I have asked this on numerous web sites, conservative and liberal, and have never gotten a response.
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Background: RvW set up a trimester system under which states had no power to restrict abortion during the first trimester, some power to restrict abortion during the 2d trimester (should the respective state choose to exercise that power), and apparently full power (again with the proviso). That’s the states.
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Question: Under which provision of the US constitution is the federal government claiming the power to regulate abortion at all? I recognize that the radical Republicans give lip service to the federal constitution, but I have not found any provision of the constitution that even remotely grants that power to the federal government.
You might as well have asked that question. To me it is the same. Abortion is murder, in all cases. Plain and simple to me. You may disagree, but that is why their are such passions on this issue.
Because the procedure could be done with the woman in one state and the doctor across the state line, and the fetus partially in both states.
Thats the biggest problem right there, frankly I do not think the Supreme Court had the authority to rule on the issue then, and the right to privacy argument is a fairly weak one since abortion is not really a private decision or a private procedure in the same manner that say the right to privacy is a factor in the Lawrence v Texas case that overturned anti-sodomy laws. Furthermore the 9th amendment if interpreted correctly really gives this power over to the states, the federal government really does not have the authority to enforce abortion laws. The idea that abortion is a right is an implicit idea and is not explicitly in the Constitution, the right way to defend Roe from a pro-choice perspective should have been to get such an amendment ratified to bring finality to the issue. Until then Roe is standing on fairly weak grounds.
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Also the view as experienced in the Casey decision puts abortion regulation squarely in the hands of the states, so if the Court were to uphold Casey, which was a ruling made by essentially a conservative majority court that allowed for laws such as parental notification, interstate bans, etc. then the court could not have supported the partial birth decision since that federalized what is essentially a state issue, but Casey stated that the right itself was federally protected but any restrictions so long as they did not interfere with the right were okay, which seems like a fairly inconsistent position to me.
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So I’d say its best for both sides that Roe gets overturned, that the Democratic Congress passes a federal abortion rights protection clause either in the Constitution or merely as a statute and either have Bush veto it firmly pushing libertarian Republicans to the Dem side, or sign it alienating the pro life caucus. And again even if it was a state by state issue women in states banning abortion would still be able to travel across state lines since such bans were deemed unconstitutional and not merely for violating the previous standard of Roe but for violating the right to free movement and association explicitly protected by the Constitution. And the other nice thing about a state by state world is it would give policy makers the ability to demonstrate why banning abortion actually fails to stop the procedure, and even North Dakotan voters voted to uphold the right. So I am unsure that even most Red states would ban the procedure. The best thing though is itd finally kill this annoying debate allowing us to move on to actual pressing concerns.
…RvW (and its companion case, by the way) are the 1973 equivalent to the Dred Scott decision. The US Supreme Court believed, in its infinite lack of wisdom, that they would settle the issue (RvW, abortion, and Dred Scott, slavery) and they only inflamed the issue in both cases. Dred Scott led inexorably to the US Civil War. And since RvW took the issue of abortion out of the political domain, people have been protesting ever since.
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The Fugitive Slave acts, pushed by the South in their infinite lack of wisdom, made the North complicit in their slavery, and that led directly to the anti-slavery riots in Boston in 1853. It was the Fugitive Slave acts that led to the Dred Scott decision, which, in turn, led to the Civil War.
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RvW took abortion rights out of the political sphere, kinda/sorta. But, if you look closely at footnote 2 in the majority opinion, you will find something interesting. That footnote lists the number of states that, by the time of the decision, had anti-abortion laws. What struck me was the number that didn’t, and the populations of the states that didn’t. I did a quick mental calculation the last time I looked at footnote 2 and figured that a majority of the population would not have been covered by anti-abortion laws, and that the trend was likely increasing. If the Supremes had not taken the issue out of the political sphere, it would probably have gone away in a few years.
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Another point, and this continues my analogy to Dred Scott and the Fugitive Slave acts. As was pointed out to me on a (fairly intelligent) conservative web site a number of years ago, one of the issues regarding abortions is that more than a few of them are financed using public funds. At some point in time (I’m not sure that this is the case now), public funds that were used for health care could not be denied to people seeking abortion. That was one of the reasons that anti-abortion people were upset–it made them complicit in abortions. Much like the Fugitive Slave Acts made Northerners complicit in Southern slavery.
…provide a basis for federal power on the matter. (EaBo, you didn’t*). I haven’t read the opinions in the case, but I suspect that the statute was not limited to persons going interstate to seek abortions, so the interstate commerce clause would not apply. What lawyers would refer to as “facially unconstitutional.”
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*EaBo, the US constitution does not give the federal government unfettered power over prosecutions for murder. If there is an interstate aspect to the murder, federal jurisdiction can apply. If a murder occurs on federal lands, federal jurisdiction most certainly applies. If there is an issue of persons acting “under color of law” (law enforcement personnel, official or otherwise), there is a federal statute that applies (a “section 1983” action), but that was authorized by section 5 of the 14th amendment. Otherwise, as far as I can tell, the federal government has no plenary power (you know what that means, by now) over “murder” in the states.
is the only possible option. Justice Thomas flagged the issue in his concurring opinion, noting that no one had raised it below.
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Sounds like a promising line of attack for some enterprising litigators. Would be fun to see how strongly the 5 “conservative” Justices believe in limiting the scope of the Commerce Clause.
I have to admit that, although Thomas is oftentimes annoying, he can also be quite–um–forthright.
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I cannot understand why the attorneys did not raise the obvious constitutional issue. That issue was the first thing that I thought of when I read of the legislation: what was the power under the constitution of the federal government enacting such legislation?
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On the commerce clause issue, it strikes me that the “interstate commerce” basis would be about as tenuous as the usage in the “gun with 500 feet of a school” act (forget the title of the act) enacted a few years ago (subsequently struck down), and the Violence Against Women Act (also struck down). This isn’t to suggest that the acts were not well intended–they were, but they were a matter of state jurisdiction. But the tenuousness of the acts to the commerce clause suggests that, if the Court had affirmed federal power, virtually anything could be within the perview of federal legislation.
see my post from very early in BMG’s history, when Thomas was being mentioned as among the possible candidates for Chief Justice. I don’t agree with a lot of Thomas’s jurisprudential ideas, but that doesn’t mean he isn’t a smart guy. He is, and he often doesn’t get the respect he deserves for a variety of reasons, some valid, some not so much.
I don’t agree with a lot of Thomas’s jurisprudential ideas, but that doesn’t mean he isn’t a smart guy.
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That was a good post on Thomas, except I think “utterly rejecting” the liberal racism charge is strangely strongly worded, don’t you think there is some element of that going on, at least sometimes? Why “utterly reject”? And your point that he makes “clear and consistent” statements such as the one above is probably what makes people think his opinions are “embarrassing” – to lawyers, law isn’t supposed to be clear and consistent and understandable, it’s supposed to be confusing and better left to professionals. Thomas has always been so forthright and clear, he must therefore be unqualified. Another thing I like about him that others mock him for is how he rarely asks questions during arguments. I can’t stand the obnoxious questions that the others ask, they are usually stupid hypotheticals that don’t make sense and just throw the lawyer off track. But people think that makes those justices witty or smart while Thomas is sitting there bewildered, and no doubt racism is at work there. But then, I’d say it is because the other guys are “old white dudes” (or the female equivilent, a jewish intellectual) that they feel this big-headed importance and lecture the lawyer, so, whatever that says about my own racism, I don’t know.
I don’t believe that Thomas would make a very good Chief, but I do understand his style at oral argument. The man is certainly not dumb. His style at oral argument is, not to ask questions, but “persuade me.” And his not interjecting questions at oral arguments allows the advocates more time to “persuade him.” (The lawyers have only a limited amount of time to present their arguments.)
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On the other hand, I would prefer someone as Chief who is a little more active at oral argument. I’ve chaired moot court oral arguments (in the 1980s), and one of the purposes of oral argument is to allow the court to find out, not what the litigants’ positions as stated in the briefs are, but what might be the limitations on the positions that they argued in the briefs. That is the real purpose of oral argument, and that is why you cannot tell from oral argument what the judges’ ultimate resolution of an issue might be.
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And, to follow up on a comment by Mr. Howard, that is the purpose of the hypotheticals: to figure out what the limitations might be. The purpose of the hypos isn’t to throw the lawyers “off track.”
Maybe the reason they didn’t attempt a commerce clause challenge was because they just lost the medical marijuana case. I think the logic was that if one state let people grow marijuana, it will wind up being transported all over the country, or maybe it just encourages people in other states to smoke it regardless of where it was grown. So, if one state allowed a certain medical procedure, it would lead to people hopping on a plane. This is also how a federal ban on cloning and genetic engineering would be justified (and with much more justification, since at first all people seeking to do this would have to hire a lab in New Jersey or Massachusetts anyhow).
What you are describing is the scenario out of the 1930s Supreme Court decision in Wickard vs. Filburn–the wheat case. If you actually read the majority opinion in that case, you would discover that it was undisclosed whether the “excess wheat” was intended to be put into a legal interstate market.
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There is an obvious distinction between the Wickard case and the medical marijuana case: there is no legal interstate market for marijuana, so if someone puts marijuana acquired from others into interstate distribution, then the distributor is the perp who should be prosecuted, not the grower. But the feds want to attack the grower, not the distributor, whether or not the marijuana that is grown will ever cross state lines. That’s as stupid as the federal government telling me that I can’t grow tomatoes in my back yard.
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Regarding the abortion decision, let me put it distinctly. If someone moves from one state to another for the purpose of obtaining an abortion, the federal government can regulate that. That is interstate. As long as the doctor who performs the abortion remains in his resident state, that is not interstate. The criminal should be the woman who moves from state to state, and the person or persons who financed her transport, but not the doctor. The problem that you have, Mr. Howard, is that the federal government is not willing to criminalize the latter activities, but it is willing to criminalize the completely intrastate activities of the doctor who performed the procedure.
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Do you understand the constitutional issue now?
Good wikipedia entry on Gonzolez v. Raich, the medical marijauna/commerce clause case.
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So because Oregon farmers would find it harder to sell their weed to Californians, it effects interstate commerce, which includes illegal commerce, hilariously. But there are legal abortions available in all states, though sometimes, presumably, a banned procedure is preferable. If some state were to ban the substance/procedure while others didn’t, it would lead to interstate commerce. It’s not like you get two shots at an abortion customer, every abortion preformed in one state is a lost sale in another state.
Interesting how, when legislation or court decisions fit the liberal ideology, the authors and signers are “lawmakers” and “Supreme Court Justices”. However, when they pass legislation or hand down a decision that the Left finds unacceptable, their race, gender, and now the religion of the Supreme Court Justices, are suddenly fair game. Since when is it does the platform of the Democratic Party deem racist, sexist and religiously intolerant language to substitute for rational and factual debate?
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Also, since when does a lawmaker or judge have to belong to the specific group that is affected by any law they pass or support in our courts? If that’s the criteria, then I guess Roe was a sham, too. Consider, too, that these “Old White Dudes” are acting based on the premise that they represent ALL human beings, including white male unborn children, NOT just their mothers who “choose” to kill them.
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As usual, your vulgar comments are the last refuge of someone who has nothing constructive to say.