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The Right Way to Reject



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Ramesh and I agree that Roe was a massive power grab on behalf of the federal judiciary, but disagree as to whether Congress can do much about it (save, perhaps, depriving the Court of jurisdiction to hear such cases). I think we might also agree that even if Congress has sufficient Constitutional authority to ban partial birth abortion under the 14th Amendment, the current bill — which purports to ban such procedures “in or affecting interstate commerce” — is wholly inadequate for this purpose. While it contains extensive findings, these findings are almost exclusively focused on addressing Justice O’Connor’s pet concerns about the basis for abortion restrictions, and not on the extent to which the failure of states to adopt partial-birth abortion bans represents a denial of equal protection. Because Congress’ only has power under the Fourteenth Amendment to “enforce” its substantive guarantees, it would have to demonstrate a Fourteenth Amendment violation before proceeding further (as the Court has rightly noted in several of its recent sovereign immunity decisions). It has not done so here.



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