“Under the modern understanding of the Constitution, a federal law regulating abortion — like other federal regulation of health providers — is unambiguously constitutional.
Congress’s power to regulate is broad but not unlimited. The Constitution lays out a list of powers that Congress is allowed to exercise, such as the power to raise armies or the power to establish post offices.
One of these powers is the ability to enact legislation enforcing rights protected by the 14th Amendment. Both Roe and Casey rooted the right to an abortion in this amendment’s guarantee that no one may be denied “liberty” without due process of law. So, as long as Roe and Casey remain good law, Congress may enact laws protecting abortion rights.
But, of course, the whole reason Democrats want to pass the WHPA is because Roe and Casey are under threat. So Congress cannot realistically rely on its power to enforce the 14th Amendment if it wants to sustain legislation protecting abortion. The Supreme Court is likely to change its understanding of which rights are protected by the 14th Amendment very soon.
Alternatively, the WHPA could also be sustained under Congress’s broad power to regulate the national economy. This power derives from two provisions of the Constitution, which permit Congress to “regulate commerce … among the several states,” and to “make all laws which shall be necessary and proper for carrying into execution” this power to regulate commerce.
As the Supreme Court explained in Gonzales v. Raich (2005), Congress may use its power over national commerce to regulate any “economic ‘class of activities’ that have a substantial effect on interstate commerce.” The Court’s decisions permit federal laws regulating landlords, family farmers, and other businesses and professionals that primarily serve local consumers. They permit federal regulation of abortion.
Abortion is a medical procedure that is provided by professionals, who typically charge a fee. Some of these doctors travel across state lines to provide this service. They are trained at medical schools all over the country, perform their services in clinics funded by donors from other states, use medical equipment manufactured in other states — you get the idea.
Abortion, in other words, is an economic activity that has a substantial effect on interstate commerce. So, under Raich, Congress could pass a law protecting abortion rights.
But this modern understanding of the Constitution isn’t exactly beloved by conservatives. And if Democrats pass a law like the WHPA, a Supreme Court dominated by Republican appointees might overrule Raich — or, at least, limit it, potentially doing considerable violence to Congress’s ability to provide other legal protections in the process.”
““We need the federal government to play its role,” Gov. Andrew M. Cuomo of New York said Monday. “The federal government has tremendous capacity.”
Much of that capacity is untapped. Hospital ships are at port. The Department of Veterans Affairs, legally designated as the backup health care system in national emergencies, awaits requests for help. The veterans department has a surplus of beds in many of its 172 hospital centers and a robust number of special rooms for patients with breathing disorders.
The sprawling system of emergency doctors and nurses ready to be deployed by the Department of Health and Human Services — known as the National Disaster Medical System — is also still waiting for orders, other than to staff locations where passengers offloaded from cruise ships are being quarantined.
And the Defense Department, home to 1.3 million active-duty troops and a civilian and military infrastructure that has made planning for national emergencies almost an art form, has yet to be deployed to its fullest capabilities. Senior Pentagon officials say they are ready to assist in any way that is ordered, but they also caution that much of the military’s emergency medical care is designed for combat trauma or natural disasters, and not mass quarantine for infections.
The last time a big infectious disease epidemic emerged, President Barack Obama dispatched nearly 3,000 American troops to Liberia to build hospitals and treatment centers to help fight Ebola. The Pentagon opened a joint command operation at a hotel in Liberia’s capital, Monrovia, to coordinate the international effort to combat the disease, and the American military provided engineers to help construct additional treatment facilities and sent people to train health care workers in West Africa to deal with the crisis.”
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“Defense Secretary Mark T. Esper said on Tuesday that the Pentagon will make available to the Department of Health and Human Services up to 5 million N95 masks, which can be used to help protect health workers and vulnerable people against the virus. The first 1 million, he said, would be available immediately.
The Pentagon is also making available 2,000 ventilators for hospitals, a number that would likely fall far short of the expected need. “When you look at how many people who may need it”
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“Field hospitals and the hospital ships Comfort and Mercy are designed for trauma wounds, not viruses, and doctors would have to be assigned from elsewhere to staff them. The ships, each with a 1,000-bed capacity, have helped in natural disasters like tsunamis, hurricanes and earthquakes, not quarantines.
Defense Department officials said that one possibility for the Comfort would be to station in New York Harbor and absorb non-coronavirus patients in New York, which could free up hospital beds in Manhattan to attend to infectious cases.”
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“Oregon sent a letter to Vice President Mike Pence on March 3 asking for 400,000 N95 masks. For days, it got no response, and only by March 14 received its first shipment, of 36,800 masks. But there was a problem. Most of the equipment they got was well past the expiration date and so “wouldn’t be suitable for surgical settings,” the state said.
New York City also put in a request for more than 2 million masks and only received 76,000; all were expired, said Deanne Criswell, New York City’s emergency management commissioner. The city is also requesting additional beds for intensive care units and medical teams to staff a convention center that may be turned into a temporary medical facility.”
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“FEMA officials said the Department of Health and Human Services remains in charge of the federal response, and it too is waiting for orders from the agency before it moves to ramp up assistance.”
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“In previous national emergencies, FEMA would be responsible for finding out where to obtain masks, ventilators, hospital beds and tents from either the military or the private sector and ensuring the supplies are delivered to states, according to Michael Chertoff, the secretary of homeland security under President George W. Bush who oversaw the response to Hurricane Katrina.
“They have relationships and know where to look for things,’ Mr. Chertoff said. “Without that it’s not clear to me who would be doing the coordination and facilitation function.””