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midribbon_action@lemmy.blahaj.zone 1 week agoI don’t think this is accurate. For one thing, whether a law prohibits or allows something is just a matter of perspective: a law allowing abortion nationally is also a law that prohibits state restrictions on abortion. Another key missing fact is the supremacy clause of the constitution, which says that federal laws are presumed to overrule state laws when they conflict. This is why a lot of ‘blue’ states had terrible abortion laws still on the books when Obergefell happened, because they were nullified by the Roe v Wade ruling in the 70s and they never got around to actually removing the defunct laws.
The supremacy clause is not absolute: the tenth amendment and others restricts how much the federal government can tell states what to do, but I think there are a number of legal arguments against that being the case for a federal abortion law.
tal@lemmy.today 1 week ago
That doesn’t relate to the supremacy clause. There wasn’t a federal law involved; that ruling was that the state law was unconstitutional, not in conflict with a federal law.
For the great bulk of legislation, there is no potential for state-federal overlap, since generally either the federal legislature can write law or the state legislature can, not both; that’s why you have the enumerated powers clause.
In the limited areas where both federal and state governments can legislate, then federal law does take precedence.
Now, you could argue that maybe there’s some Constitutional authority that permits the federal government to do so.
kagis
It looks like the CRS has a document up on this point:
www.congress.gov/crs-product/LSB10787
They list three potential routes of relevance:
One is that there might be a dormant Commerce Clause argument (the federal government has authority over interstate trade) Their take is that while it’s possible that the Commerce Clause might permit regulation of some provision of abortion-related services across state lines (like an abortion clinic doing business across state lines), it most-likely doesn’t cover abortion legality in general.
The second is that Congress might be able to use the power of the purse — basically, to withhold or extend funds to coerce the states to pass laws at the state level that they want. This was done at one point in the past to force states to raise their drinking age if they wanted highway funds. This can’t be a general “just make states do whatever you want” club, because otherwise you don’t have a federal system. There hasn’t been much case law on this, so the precise line drawn isn’t terribly clear. At one point, the Supreme Court permitted use of it to deny interstate highway funding to states that didn’t raise their drinking age (with the idea that teens would be drunk-driving on the interstate). The other major ruling was on the ACA individual coverage mandate, where the Supreme Court shot down its use. I think that it’s probably a pretty good bet that one couldn’t use it to across-the-board restrict state abortion law, though it might be possible to specifically provide federal funds for abortions (though right now, federal law runs the other way and has a restriction on use of federal funds for abortions).
The third area they cover is that they maybe, despite the fact that SCOTUS ruled in Dobbs that there’s no general right to abortion in the Constitution, there might still be some sort of argument that the Fourteenth Amendment could in some way affect some peripheral area.
But, in general, the federal government can’t just say "I don’t like state law, so I’ll pass federal law in the same area.