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HuffPost fails even the basics in piece on abortion rights

HuffPost is [1] – rather tragically – failing on the subject of legal and constitutional knowledge. Yes, of course, this is about Roe v. Wade, but we do think that it’s remarkable the number of media outlets simply not grasping the basics here. HuffPost asks what it would take to get Roe, or abortion rights, encoded into U.S. law. 

No, that’s not how it works.

Americans do not need to rely on the Supreme Court to ensure abortion care is legal: Elected representatives, backed by a majority of Americans who support Roe, could enact a law cementing the right to an abortion.

But it does not appear very likely to happen nationwide. Here’s why.

There are then a list of reasons given and a series of possible ways around them. The problem with the listing – and the reasons – is that the one actual and big reason why U.S. law isn’t going to change concerning abortion is that it would be unconstitutional if it did.

As ever discussing this subject this is not to take sides on whether or what the law should be. It is thought to point out how the American system works and this is something that media outlets should in fact grasp. Especially when discussing how the American system works – you know, that idea that a little knowledge might be a dangerous thing but it’s a lot better than no observable knowledge? 

The American Constitution contains a number of details about what it is that the Federal government should get itself involved with. It then says – that enumerated powers part – that if something’s not on that list then it’s left to the States or the people. Yes, that list of what the Feds can do has been pretty stretched over the years, the Commerce Clause has been used to insist that a farmer can’t grow his own wheat for his own family to eat (no, really, Wickard v. Filburn [2]). And yet, it’s still there. The Feds get to do this, everything else is to be dealt with by other people.

We then end up with a three-layer legal system. Here’s the Constitution. Then, for other things, here’s the list of what the Feds deal with. After that, if it’s not on the list then it’s States and the people. It looks like abortion isn’t going to be in the Constitution anymore. It’s not on the Fed’s list. So, States and people it is then. 

HuffPost is ranked No. 25 in media outlets. It gains near 70 million monthly visits as a result. It’s clearly an important part of that media ecosystem. 

We are, again, not stating what abortion law should or should not be. We are trying to insist that a major media outlet really should grasp the structure of American law when discussing what American law should be. The reason that – once it’s not a Constitutional right – there isn’t going to be a national, or Federal, law on abortion is that it would be unconstitutional if there were. This is true whatever it then says the law is – this is a matter for States and the people, it’s written down, right there, in the Constitution. 

HuffPost should know this.