BTW, affirming the federal government's power to regulate abortion per se thereby affirms a central tenet of Roe v Wade. Without that power, Roe v Wade is effectively moot.
AntiGuv, I was thinking just like you a few minutes ago, but read Justice Thomas’s concurrence (I posted a couple of sentences from it earlier on this thread.) He clearly states that the federalism issue was never raised in this case.
The “personhood” of the unborn is not recognized in U.S. law...
That was another one of Harry Blackmun's factual errors, to say nothing of his bizarre and tortured misunderstanding of even basic grammar, logic, science or philosophy. It was not and still is not correct, even currently. See for example Steinberg v. Brown, 321 F. Supp. 741, 745-47 (N.D. Ohio 1970) or Commonwealth v. Cass, 392 Mass. 799, 801, 467 N.E.2d 1324, 1325 (1984) (construing vehicular homicide statute). Even if it were correct, though, and it is not, it might also be that there aren't any cases holding newborn infants to be persons. Does that mean therefore that they are not? Positivist notions of law such as this are alien and completely antithetical to the natural law concepts of the Framers of the Constitution.
Since when does the law create natural persons or the inalienable rights of natural persons? Are natural persons natural persons only by virtue of being recognized by some statute or case law?
Human beings are not persons because they can prove that they should be included as persons under the Fifth and Fourteenth Amendments; they are already included as persons by virtue of their humanity.
Since when do courts have the power or authority to create substantive exceptions to fundamental rights where no such exceptions appear in the Constitution, and where such exceptions abrogate the inalienable rights of natural persons?
Cordially,
You miss the point here. In Roe the SCOTUS used the Constitution as a pretext to make abortion an unassailable federal constitutional right. Here there is plenty of actual authority for Congress to pass the PBA ban.
Furthermore, if Roe is overruled, Congress should have authority to proscribe abortion under section 5 of the 14th Amendment. It is also possible that SCOTUS could hold that states may not allow abortion since the 14th Amendment states that "no state shall . . . deprive any person of life . . . without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." To me, if a state proscribes the murder of its born persons, and fails to do the same for its unborn persons, then it has violated the equal protection clause.
Don't kid yourself. This is not purely a state issue. There are plenty of textual grounds in our Constitution for the federal government to delve into this area. It just happens that Roe was an illegitimate use of judicial authority, thereby creating the big mess (and holocaust) we have today.