That blue states can play the same game as red states should not be reassuring. However, the Supreme Court in Ross decided that the dormant Commerce Clause had never stopped states from applying their laws outside of state lines in this way, leaving the door open for a kind of abortion civil war, with conservative states targeting actors in progressive states, or even vice versa. That would have made it much harder for states to target doctors, Uber drivers or anyone else whose conduct was legal in progressive states if they chose to help out-of-state abortion seekers in their efforts to terminate a pregnancy. States like California are not trying to help California abortion doctors outcompete providers in Texas they are trying to protect their own citizens from criminal and civil consequences when they help people traveling from states with bans.īut some scholars and observers of the case thought that the dormant Commerce Clause stood for more: a strong presumption that states could not constitutionally apply their own laws outside of state lines. That principle may not do much to protect states that treat abortion access as a protected right. The dormant Commerce Clause, Ross tells us, most clearly stops states from playing favorites, from rigging the rules to give their own products and businesses a leg up. Opinion: For women, it’s past time to give up the ghost of equality (Photo by Alex Wong/Getty Images) Alex Wong/Getty Images Maloney in the news conference to call for ratification of the Equal Rights Amendment (ERA). Activists and Congressional Democrats joined Rep. Constitution during a news conference on women's rights Apon Capitol Hill in Washington, DC. WASHINGTON, DC - APRIL 30: An activist holds a copy of the U.S. Here’s how that might look if applied to reproductive rights: If California can ban in-state sales of pork if it originated from a cruelly confined sow, can it ban products made by companies that refuse to pay for employees’ birth control or abortions? Can Texas ban the sales of products if produced by companies that pay for employees’ birth control or abortions? If Ross is the law, there appear to be few limits on the kind of moral and policy choices states can make in restricting goods sold within their borders, even if they are made elsewhere. That’s what Justice Brett Kavanaugh suggested in his separate opinion (which concurred in part and dissented in part from the majority). Why would pork raised in cruel conditions be any different?īut no Supreme Court case is limited to its own facts, and the abortion issue is lurking in the background. While the justices were unable to agree on the legal rationale for their decision, they sided with California - and reinforced every state’s ability to regulate “the sale of an ordinary consumer good within its own borders.” After all, even the challengers in Ross conceded that states could ban in-state sales of products made by child labor on moral or ethical grounds. While Proposition 12 animal welfare restrictions did not openly discriminate against interstate commerce, the challengers argued that the burdens of the law greatly outweighed the moral and health reasons California offered to justify its policy. The Supreme Court has long interpreted the US Constitution’s Commerce Clause to bar the states from favoring in-state products over out-of-state products and generally burdening interstate commerce. Ross focuses on the so-called dormant Commerce Clause. The central argument of National Pork Producers Council v.
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