Two Can Play At That Game

Infuriated Democrats are yammering about statutorially protecting abortion through federal law, akin to how the Civil Rights Act of 1964 used Congressional authority to regulate interstate commerce.  

The Constitution's regulation of interstate commerce clause was originally not to give the national government any power.  It was to prevent states from passing laws that did so: such as conflicting monopolies on steamship ferry service between New Jersey and New York.

But even if we accept that this was an actual grant of authority, there must be interstate commerce involved.   I have previously mentioned Wickard v. Filburn (1942) which allowed Congress to regulate the growing of wheat that never left the farm much less crossed a state border.  

The Civil Right Act of 1964 survived the Heart of Atlanta suit because Heart of Atlanta advertised in various interstate publications.   It would be hard to claim they were not engaged in interstate commerce without withholding a laugh.  Other provisions, such as sec. 701 prohibiting employment discrimination applied to all businesses employing 100 people or more (dropping to 75 and 50 employees in later years) based on the unsupported claim that a business that size must be engaged in interstate commerce.  Even if they sold only in their own state they likely did business with others that were engaged in interstate commerce.  This seems a profoundly debatable claim, but so what?  It is likely true.  Almost everything but sand and lemonade stand sales moves, has moved, or could move in interstate commerce.

So what if Congress statutorily protects abortion on the theory that the availability of abortions affects interstate commerce.  Fine, when President DeSantis takes the White House, Congress can use the same rationale to prohibit abortion in every state, unlike a post-Roe America where half the states will either have no abortion laws or fairly liberal ones.

Oh and then we get to using the same logic to strike down all gun license laws.  Here we are on stronger ground because Congress actually declared that was their goal in passing the 14th Amendment.