Looking on the bright side, this post assumes a Kamala win in November and a Democratic Senate.
Now, for the not so bright side.
A week or so ago a friend who is also a lawyer wrote to ask if I had any idea what the constitutional basis would be for the creation of a federal right to abortion, one of the planks upon which Kamala is running. He suggested the only basis he could come up with would be the commerce clause, which is a thin reed indeed upon which to rely.
I replied that the same question had occurred to me. Having overturned Roe v. Wade, the court has essentially declared that abortion is not a federal issue. I suppose you might try to rely on this section of the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The argument would be that Congress has declared the right of an abortion to be among the privileges of citizenship.
None of these arguments will make any headway in the present Supreme Court and it’s a given that one or more red state attorney general would challenge the law. There was a time when some talking heads thought that John Roberts would, in order to protect his own reputation, be a sort of moderating influence on the court, but it has now become clear that he agrees with Macbeth:
“I am in blood Stepped in so far that, should I wade no more, Returning were as tedious as go o’er”
Roberts is now fully committed to the right wing agenda as are the rest of the six, so there’s really no chance any federal law protecting abortion rights would pass muster. It would be harder for the court to overturn a law that protects the right to travel to obtain an abortion, since some states have criminalized even that, but I’m sure they could come up with a pretext for doing even that, though it would require ignoring precedent, but that hasn’t been a problem for them. On the other hand, should the fascists win, the Court would have no problem upholding a federal ban on abortion.
UPDATE: I don’t know how much coverage the mainstream will give this story, but it is now clear that the Supreme Court will do what it can to assist in stealing the election. Perhaps Biden should consider putting the six of them in jail until January 6th. After all, he is immune from any criminal law, isn’t he?