Can Congress pass a national abortion bill?
Now that The Great SCOTUS Leak has occurred, there’s even more talk than before about Congress passing some sort of national abortion bill. But if that were to happen, would such a bill be constitutional?
“Constitutional” seems to be a quaint word these days, because part of the purpose of the leak was to undermine the Court’s decisions and credibility in general by intimidation and propaganda, and it’s the Court that would be ruling on such legislation’s constitutionality.
The purpose of this Dodd decision leak becomes more and more clear as we watch the Democrats’ propagandist rhetoric around it: it means that the GOP is going to ban contraception, interracial marriage, gay children in the school system, whatever lie that the left believes will serve to inflame their base and even frighten people in the middle who don’t know any better.
Here’s an article that attempts to deal with the constitutional issue:
Democrats in Congress are calling on their colleagues to “codify Roe” in federal law. The Women’s Health Protection Act (WHPA) introduced by Rep. Judy Chu (D-Calif.) in June 2021 would do just that. Here’s what you need to know.
The WHPA announces as its purpose “to put an end to harmful restrictions, to federally protect access to abortion services for everyone regardless of where they live, and to protect the ability of health care providers to provide these services in a safe and accessible manner.”…
This time around, Congress would again define access to abortion as a case of interstate commerce. People travel across state lines to procure abortion services; medical equipment that provide abortions all moves in interstate commerce; and licensing, training and education for abortion providers all involve interstate travel and commerce. Proponents hope that by codifying Roe in this way, a new federal law guaranteeing the right to abortion would survive the Supreme Court’s inevitable review.
Unfortunately for proponents, the Supreme Court has become much, much more conservative since 1964. As I detail in “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution,” Congress’s commerce power has been one of the primary targets of a conservative legal movement eager to limit the regulatory scope and power of the federal government…[a discussion of a number of such decisions follows]…
With these negative Commerce Clause decisions and an even more conservative Supreme Court supermajority installed for the foreseeable future, it is likely that the same five justices who appear poised to overrule Roe v. Wade would find reason to strike down the Women’s Health Protection Act as exceeding Congress’s power.
To me it’s clear that it would exceed Congress’s power, but that doesn’t stop the left from trying, or from arguing that it is well within Congress’s power to regulate interstate commerce. That argument can be used to federalize almost anything, which was certainly not the Founders’ intent. If a woman is not barred from traveling from one state to another for an abortion, how can the interstate commerce clause be used to force every single state to legalize something that is not otherwise in Congress’s power to legalize or to ban?
Please note what I added there: “or to ban.” Similarly, a conservative Congress could not ban abortion in every state, for exactly the same reason. Abortion is not illegal now and any state can legalize it to its heart’s content if Roe is repealed.
Making abortion available nationwide, in every single state, would actually take a constitutional amendment, and the same would be true for making it illegal in every state. But amendments have gone out of style because they’re hard to pass, plus Congress and the president and federal agencies have gotten used to doing whatever they want without worrying about Congress or amendments. To pass an amendment, major and widespread consensus is required, and that’s hard to get if the policy you’re advocating isn’t supported by a strong majority of the people and the states. That’s by design, of course; the design of the Founders.
It is always instructive to compare the laws in this country with those elsewhere. In France, for example. abortion is allowed until 14 weeks and afterwards severely restricted. In fact, our laws surrounding this contentious issue are amongst the most permissive in the entire world. Feminists (and leftists in general) ought not to have abandoned the mantra of the Clinton years (“safe, legal, and rare”) and become so extreme and so radical as to engender the inevitable reaction to their lunacy.
I think you state it well, neo.
No, Constitutionally the Legislative branch should be unable ,to pass a law restricting states from restricting abortion, but the Legislative, Judicial and Executive branches have a long history of ignoring the Constitution, so anything is possible. The Legislative’s twists and tricks to pass the ACA and the Roberts’ court’s rhetorical gymnastics to support it are one of the more egregious, recent examples.
Just posted at Quillette: A long article comparing pre-Roe and post-Roe abortion novels: while the author’s summaries of a surprisingly long list of novels (including one by Joan Didion) are interesting, his conclusion is typical of the Left: ” . . . if the leaked draft opinion written by Supreme Court Justice Samuel Alito becomes law, conservative states like Mississippi won’t have to worry about terrorists shooting up abortion clinics, because there probably won’t be any clinics left to shoot up. Instead, we are likely to see a return of the kind of abortion novel that proliferated in the late-’60s—stories filled with characters who are forced by carelessness and circumstance to make the kind of agonizing personal choices that adults who grew up in a post-Roe America were fortunate enough not to have to confront.”
https://quillette.com/2022/05/05/get-ready-for-the-return-of-the-abortion-novel/
Looks like the WHPA of 2021 has aims somewhat beyond the mere nationalization of abortion services access. See the below for starters:
Sec. 2, (4) Reproductive justice requires every individual to have the right to make their own decisions about having children regardless of their circumstances and without interference and discrimination. Reproductive Justice is a human right that can and will be achieved when all people, regardless of actual or perceived race, color, national origin, immigration status, sex (including gender identity, sex stereotyping, or sexual orientation), age, or disability status have the economic, social, and political power and resources to define and make decisions about their bodies, health, sexuality, families, and communities in all areas of their lives, with dignity and self-determination.
(5) Reproductive justice seeks to address restrictions on reproductive health, including abortion, that perpetuate systems of oppression, lack of bodily autonomy, white supremacy, and anti-Black racism. This violent legacy has manifested in policies including enslavement, rape, and experimentation on Black women; forced sterilizations; medical experimentation on low-income women’s reproductive systems; and the forcible removal of Indigenous children. Access to equitable reproductive health care, including abortion services, has always been deficient in the United States for Black, Indigenous, and other People of Color (BIPOC) and their families.
sdfert:
Black women have comparatively high abortion rates, so it’s hard to believe they are systematically kept from having abortions.
Quite so, neo. Rep Chu looks down her nose at these poor benighted victims she thinks herself to aid. Their offspring can’t be extinguished quickly enough it seems.
“My body, my choice” seems to have undergone a period of quietude with the mandatory vaccinations. Now we even have a budding Supreme Court justice who cannot define “woman” which now requires a biologist.
Congress can pass that, or any other number of unconstitutional bills. Even a national Defense Of Marriage Act against gay marriage – but it’s the SC which decides if such a law is Constitutional. In the case of DOMA, a law enacted by democratically elected representatives, the Court said “Nope”. But that Court had a Democrat oriented activist majority, as compared to the current limited Federal gov’t conservative Court (thanks Trump, Heritage Foundation, and millions of pro-life Trump supporters).
I even think there’s a 90% chance some Dem introduce such a National Abortion bill, and about 50% chance it passes. If so, there’s probably some 95% chance this Court will declare such a law unconstitutional.
Something not too mentioned is that in prior generations, there was a lot more “slut shaming” against unmarried mothers having promiscuous sex. Many, maybe most, pro-life Republicans have long been willing to accept higher welfare for unmarried mothers, and less slut shaming, in order to reduce the number of abortions for economic reasons.
It’s now about 40% of kids are born to unmarried mothers, including some 75% Black kids and 30% of White kids. Such kids are much more likely to become criminals and to have other problems – but pro-life folk are truly glad they weren’t aborted.
“Making abortion available nationwide, in every single state, would actually take a constitutional amendment, and the same would be true for making it illegal in every state.”
Why would it necessarily take a constitutional amendment to make abortion illegal in every state? Congress could take the relevant parts of the 14th Amendment literally —
“nor shall any State deprive any person of life, liberty, or property, without due process of law…”
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
— and enact an appropriate statute. And let the Supreme Court have at it when an appropriate case comes up.
See https://www.firstthings.Com/article/2021/04/abortion-is-unconstitutional for a fully developed argument along these lines.
I agree with Tom Grey that a pro-abortion bill will be introduced in congress. Odds of passage less than 50% due to filibuster, but let’s suppose it does pass.
Who would have standing to challenge it in Federal Court? The Product of Conception? A random person who would have a spouse or sibling but for the abortion and now has a claim of loss of consortium? I’m finding it difficult to conjure a “victim” who would be able to claim a loss. It’s not like a law against murder, where the state says “Thou shalt not!” Here, the state is saying only “Thou may if thou so wishes, but only if thou so desires.”
IANAL. obviously.
Tom Grey (4:34 pm) writes that “in prior generations, there was a lot more ‘slut shaming’ against unmarried mothers having promiscuous sex.”
I am definitely opposed to “slut shaming”, but I am willing to unequivocally state this:
Except for instances of rape, forcible incest, or certain unforeseen medical conditions, women already do have a (foreseeable) choice. “My body, my choice” indeed.
Now, I do not intend for the following to be a religious argument, but I find myself *appalled* at the low regard for the sanctity of human life in our culture [I know, “sanctity” is a religious word, but it’s the most apropos word that I have handy].
“If it feels good, do it” and all that. You-all know the rest . . .
“The WHPA announces as its purpose “to put an end to harmful restrictions…”
Exactly of what would “harmful restrictions ” consist?
The Mass. bill currently under consideration would hold as legal the ‘termination’ of a baby’s life up to 30 days after birth.
Infanticide returns to the Western Hemisphere…
Above, Watt quotes from the 14th amendment; “nor shall any State deprive any person of life, liberty, or property, without due process of law…”
Indeed, ‘personhood’ pre-birth lies at the heart of abortion.
Reason declares that its fundamental relevance cannot be dismissed.
I agree with Tom Grey that a pro-abortion bill will be introduced in congress. Odds of passage less than 50% due to filibuster, but let’s suppose it does pass.
Who would have standing to challenge it in Federal Court?
There is a black woman who is a survivor of a failed abortion. She is running for Congress as a Republican. Don’t recall which state.
The Mass. bill currently under consideration would hold as legal the ‘termination’ of a baby’s life up to 30 days after birth. — G.B.
That’s astonishing. It’s under consideration so here’s hoping that sensible people will prevail.
One of the curiosities, to me anyway, of the old abortion debate was the fact that most everywhere(?) when a pregnant woman was murdered it was chalked up as a double homicide. I was amazed when NY state passed a law not too long ago eliminating that second homicide. It’s only a lump of tissue after all. At least they are now consistent. Not an improvement IMO.
M J R; Tom Grey:
One of the main ways that previous generations dealt with premarital pregnancy was the institution of the shotgun wedding.
TommyJay:
In a double homicide, both lives are terminated by an outside perpetrator. There is no “it’s my body” argument available. So although there is some inconsistency it’s not completely inconsistent to allow abortion but to consider the murder of a pregnant woman to be a double homicide.
West TX Intermediate Crude:
I don’t know who would have standing, but perhaps a state that has passed abortion bans or restrictions.
They weep and wail and gnash their teeth over how far a woman may have to drive to get an abortion, but they don’t give a rat’s a** about an entire village in Alaska: the left continually blocks building a road though a national forest that would link the town to the nearest hospital.
Because it would “set a dangerous precedent.”
Watt:
The reason an amendment would be required is that fetuses are not persons under the law in the US. That article you linked argues otherwise, or at least argues that they should be, but they are not at this point and even the historic background for the idea that US law has treated them as such is very shaky. See this:
The Left really is self obsessed, and, perhaps, quite insane.
Meanwhile a British journalist named Simon Gwynn “wants to know if you would murder SCOTUS Justices Samuel Alito and Clarence Thomas if you had the chance.” Gwynn later tweeted that “I’ve removed my recent two tweets about the US Supreme Court as on reflection they’re obviously pretty irresponsible, though I don’t think they would be against Twitter’s TOS. FYI I don’t endorse murdering anyone, but don’t think there’s anything wrong with thought experiments.”
As is noted over at Legal Insurrection, “Think before you tweet. Also, if you think like this, you need to talk to someone.”
https://legalinsurrection.com/2022/05/british-gaming-journalist-wants-to-know-if-youd-murder-justices-alito-thomas-if-you-could/
We all admire Clarence Thomas– but I have to admit Alito has a special place in my personal Hall of Fame– he’s a Phillies fan, and we’re an endangered species, particularly given the Phightins’ wretched performance so far this season. Anyway, here’s “Justice Sam Alito, The Phillies Fan”:
https://abovethelaw.com/2010/04/justice-sam-alito-the-phillies-fan/
My current Gedankenexperiment is to imagine Simon Gwynn being sentenced to watch a full three-hours-plus Phillies game seated next to Sam Alito.
Neo:
I don’t think your quote is dispositive.
Admittedly, Roe holds that a fetus is not a person under the 14th Amendment.
I guess I’m getting at something more procedural. As occurred in the scenario underlying Dobbs, a state legislature essentially stuck its finger in the eye of the United States Supreme Court and enacted a statute that violates Roe. That forced the issue, giving us the Dobbs case.
At the federal level, does the fact that the Supreme Court has ruled a certain way prohibit Congress a priori from enacting a statute that violates that ruling? I mean, Congress “accidentally” does that from time to time; someone sues; and a case eventually comes up to the Supreme Court, which rules that the statute violates Equal Protection or whatever. Often, the Court comes up with a new or extended interpretation of a constitutional provision and quashes the statute. But — and I can’t think of examples offhand but I’m pretty sure it’s happened — sometimes the Court will rule against the statute based on its existing precedent. In which case, presumably Congress should have known better or gone through the amendment process.
So, in the present situation, could Congress accidentally-on-purpose enact a statute along the lines I mentioned in my earlier comment, which would no doubt give rise to a lawsuit (no doubt with an injunction/stay subproceeding), which would no doubt make it to the Supreme Court — thus “circumventing” the amendment process? I’m not sure about this — but why not? (See previous paragraph.) And would the Supreme Court necessarily have to rule on the basis of the Roe precedent, or could it take the opportunity to reverse itself (as will apparently happen in Dobbs, as triggered by the state statute)? Again, why in the present situation would be the amendment process be the only remedy?
PS: The “Preview” button doesn’t appear to work.
“The Left really is self obsessed, and, perhaps, quite insane.” SCOTTtheBADGER
It’s not that they don’t distinguish between right and wrong, it’s that they think that wrong is right and right, wrong.
Which is the inevitable result of embracing ideologies that rest upon the rejection of basic attributes of human nature. Ideologies which also reject basic principles that govern the external reality within which we all exist.
It’s not accidental that the more divorced someone’s life is from basic realities, the more easily it is to imagine that reality is whatever it is wished to be.
Which explains the rural vs city split, i.e. meat doesn’t come from the grocery store as city dwellers pretend to themselves, it comes from yummy animals we slaughter.
Every time I drive to the grocery store, I pass by fields with cattle grazing, fattening themselves up for the butcher.
Add in the rejection of the premise that there is a merciful but just creator, who will hold us accountable for our actions in life and you end up with what has become known as Dostoevsky’s dictum; “If God does not exist, then everything is permitted.”
Everything because absent God, only personal opinion remains and who am I to tell you what you can and cannot do?
Leaving might makes right to settle any differences.
Call them ‘unsane’.
The digusting Minneapolis Star Tribune reached a new low, entitling an editorial
“Pregnant people have rights.
Products of conception don’t.”
Speaking of hate speech that ought to be suppressed but won’t.
https://notthebee.com/article/important-reminder-after-leak-of-supreme-court-decision-that-chuck-schumer-literally-threatened-supreme-court-justices-if-they-overturned-roe
On the other hand, if all the hateful statements by Democrats were suppressed, the news would be very short.
And we might not be aware of just how bad they have gotten.
Or perhaps many of them always thought this way, but were canny enough not to say the quiet parts out loud.
Doc Zero’s essay on the leak.
https://threadreaderapp.com/thread/1521824195495309314.html
About that coordination: see TommyJay’s comment here:
https://www.thenewneo.com/2022/05/05/open-thread-5-5-22/#comment-2622204