XPost: talk.abortion, soc.culture.israel, alt.bible.prophecy

http://reason.com/2022/07/12/if-congress-bans-abortion-this-new-deal-precedent-will-be-at-the-center-of-the-legal-battles/


If Congress Bans Abortion, This New Deal Precedent Will Be at the Center
of the Legal Battles
A 1942 decision about the Commerce Clause takes on new importance post-Roe. DAMON ROOT | 7.12.2022 10:05 AM

US Supreme Court Abortion New Deal Franklin Roosevelt
(Illustration: Lex Villena; Smontgom65 | Dreamstime.com)
The U.S. Supreme Court's recent decision in Dobbs v. Jackson Women's
Health Organization, which overturned Roe v. Wade (1973) and eliminated
the constitutional right to abortion, has raised the possibility of a
future Republican-controlled Congress seeking to ban abortion
nationwide. If that happens, the resulting courtroom battles will likely
center on a New Deal–era Supreme Court precedent that vastly expanded
the scope of congressional power.

Under the Constitution, Congress possesses the authority "to regulate Commerce…among the several States." At the time of the founding, this
power was understood to be a limited one. As Alexander Hamilton
explained in Federalist 17, the Commerce Clause did not extend federal authority to "the supervision of agriculture and of other concerns of a
similar nature, all those things, in short, which are proper to be
provided for by local legislation." While Congress was permitted to
regulate economic activity that crossed state lines, in other words, it
was not empowered to control wholly intrastate economic undertakings.


That changed in the 1940s as a result of the federal government
sanctioning an Ohio farmer named Roscoe Filburn for growing twice the
amount of wheat that he was allowed to grow under the terms of the
Agricultural Adjustment Act of 1938. Congress specifically invoked its
power to regulate interstate commerce while enacting that New Deal law.
The statute's goal was to raise agricultural prices by limiting the
supply of crops hitting the national market.

Filburn fought the law by arguing that his extra wheat was not subject
to federal regulation because it never once entered the stream of
interstate commerce. In fact, he pointed out, his extra wheat never even
left his own farm. It was used to either feed his livestock or make
flour for his family's kitchen. It was nowhere near "Commerce…among the several States."

The Supreme Court thought otherwise and issued one of the most
significant rulings of the New Deal era. Filburn's extra wheat may not
have crossed state lines, the Court said in Wickard v. Filburn (1942),
but entirely local activity of the sort was still subject to
congressional regulation if it had a "substantial economic effect" on
the national market. It was a huge political win for the agenda of
President Franklin Roosevelt and a significant boost to Congress'
overall regulatory authority.

Congressional power was boosted again by SCOTUS in the 2005 case of
Gonzales v. Raich, which extended Wickard while upholding the federal
ban on marijuana, even as applied to medical marijuana that was both
legal to use under state law and which was cultivated and consumed
entirely within the confines of a single state. Once again, the local
conduct at issue was said to have a "substantial effect" on the
interstate market.

Modern liberals have generally cheered for the broad vision of
congressional power endorsed by Wickard and Raich. But they may feel
somewhat differently about it when congressional Republicans invoke
those same precedents in support of a federal abortion ban, which would
also reach down to regulate wholly local activity. What is worse, plenty
of Republicans in Congress seem willing to do just that.

The good news for abortion rights supporters is that any such use of
Wickard and Raich may be rejected by even some of the most anti-abortion members of the current Supreme Court. Justice Clarence Thomas, for
example, sharply dissented in Raich itself, faulting the majority
opinion for turning the meaning of the Commerce Clause on its head. "By
holding that Congress may regulate activity that is neither interstate
nor commerce under the Interstate Commerce Clause," Thomas wrote, "the
Court abandons any attempt to enforce the Constitution's limits on
federal power." Thomas resumed his attack on the logic of Raich just
last year.

Strange as it may sound, Thomas (and possibly a few other anti-abortion justices) might conceivably vote for the abortion rights side if a
federal abortion ban ever reaches the Supreme Court.

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