With the Supreme Court's recent abortion decision there has been talk in both parties about potential Congressional action. For the Democrats it's been about codifying legislatively the precepts of Roe/Casey on a national level. For the Republicans, in the event they gain control, it is passing a national ban on abortion after 15 weeks (or, for others, an absolute ban).
Apart from the intra-party political disputes each party would face in drafting legislation (1), I have my own problem with these proposed solutions because I do not believe Congress has any Constitutional authority to pass such legislation. Past legislative proposals have invoked the Commerce Clause as the Constitutional justification but my view of that clause is that the decision of an individual to have an abortion does not constitute interstate commerce. Some conservatives have made an alternative argument that Congress has authority to legislate on this subject under the 14th Amendment but it is a big stretch to do so, and moreover, it would mean effectively reading that Amendment as supporting substantive due process, which is otherwise anathema to conservatives.
If I were in Congress I would vote against any such proposals and that is why THC is never going to be nominated for public office by either party!
UPDATE: For those interested in the underlying constitutional law issue, listen to this Bari Weiss podcast in which Akhil Reed Amar, a pro-choice Yale Law School professor, explains the constitutional deficiencies of the 1973 Roe decision.
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(1) For the Democrats the problem is the party has moved way beyond Roe/Casey and takes the position that there should be no legal constraints on abortion - the Equality Act proposed by the party would Federalize abortion and allow it at any time until birth (though there are legislative proposals in California and Maryland to extend that for a bit after birth). For Democrats, abortion has moved from the Clintonian formula of "safe, rare, and legal" to the Calhounian doctrine of a positive good.
For Republicans it is going to be extremely difficult to reconcile the differences between those supporting a European style 15 week limit, with appropriate health exceptions, and those who will strongly advocate for an absolute ban. The former is roughly consistent with American public opinion, the latter opposed by most Americans.
It requires a Constitutional amendment. I’d be in favor of an amendment that states that in addition to the enumerated rights, the Constitution also protects Unenumerated rights.
ReplyDeleteOf course, an amendment is, rightfully, more difficult to pass even than legislation. But that’s the only way of ensuring that the government entities do not try to strip such rights.
I'm not sure that would solve the problem. The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." while the Tenth states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.", yet here we are. Some of this is due to the structural change in the Constitution with the post-Civil War Amendments. With the more limited Federal Government pre-1861 this wasn't much of an issue, but with the expansion of the Federal Government and the application of most the Bill of Rights, via the 14th Amendment, it's become a lot more complicated. Unenumerated rights pushes up against that Constitutionally authorized (by the Court) expansion. For instance, is growing food for your family, an unenumerated right not subject to government interference? For the first 150 years of this country I don't think the issue ever occurred to anyone, but since 1942 it is not a right. It may be that amendments designed to preserve specific additional rights may be better than another attempt at a general unenumerated rights amendment. But maybe not!
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