Late yesterday afternoon, on an almost complete party-line vote, the House of Representatives passed a bill that purports to ban abortion after the 20th week of pregnancy:
Washington (CNN) - The House of Representatives Tuesday passed a GOP-sponsored bill banning so- called “late term abortions” – procedures for women who are beyond 20 weeks into their pregnancy. The vote was 228-196, mostly along party lines.
The bill’s sponsor, Republican Rep. Trent Franks, R-Arizona, stirred up controversy last week when he opposed an effort by House Democrats to add an exception for women who are raped, arguing that “the incidents of rape resulting in pregnancy are very low.”
House Democrats seized on the comment, and because of the backlash GOP leaders later decided to add new language to the bill allowing women who get pregnant as a result of rape or incest to obtain an abortion if they report the crime to authorities.
The bill is a dead letter in the Senate, of course, and even it if somehow managed to pass that body it would be vetoed by President Obama. Of course, this bill was never actually about voting on a bill that had a chance of passing into law, it’s about appeased the GOP’s Tea Party, religious right base. However, given recent Republican rhetoric on Constitutional issues, this bill does raise some questions.
First of all, under what provision of the Constitution does Congress have the authority to regulate abortion at all?
Interestingly, it appears that they’re using the very same provision that conservatives were complaining about just a year ago during the Supreme Court’s deliberations over the Affordable Care Act:
This bill, titled the “Pain-Capable Unborn Child Protection Act,” unlike the partial-birth abortion ban, has a few relevant “constitutional findings” that articulate the government’s “compelling” governmental interest” and its basis under the commerce clause, as well as (why not) equal protection, due process, and section 5 of the 14th amendment.
(12) It is the purpose of the Congress to assert a compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.
(13) The compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain is intended to be separate from and independent of the compelling governmental interest in protecting the lives of unborn children from the stage of viability, and neither governmental interest is intended to replace the other.
(14) Congress has authority to extend protection to pain-capable unborn children under the Supreme Court’s Commerce Clause precedents and under the Constitution’s grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment.
Yep, that’s right, they’re not only appealing to the Commerce Clause, they’re also appealing to the Supreme Court’s precedents interpreting the Commerce Clause, the very same precedents that, a year ago they were arguing had improperly expanded Congressional power beyond what was intended by the Founders when they placed it in the Constitution. Now, that’s a position that I happen to agree with to a large extent, and indeed the Supreme Court’s opinion upholding the Affordable Care Act rejected the Commerce Clause argument advanced by the proponents of the PPACA and found the law Constitutional under an alternative legal theory. If you actually take the arguments of the critics of the Supreme Court’s Commerce Clause precedents since the 1940s seriously, then it seems clear to me that there is no viable Commerce Clause argument in favor of a general ban on abortions at any stage nationwide. You can only come to that conclusion by relying on the very Supreme Court precedents that “constitutional conservatives” have spent so much energy criticizing. Am I the only one seeing the hypocrisy there?
As for the 14th Amendment argument, there simply isn’t any legal support for the argument that unborn children are covered by the “persons” protected by that Amendment and, if you are an originalist, then it’s fairly obvious that there’s no legal merit to an argument that it does. Indeed, considering unborn children “persons” under the 14th Amendment would establish an immediate conflict between the rights of living adults and unborn “persons” that the authors of the 14th Amendment clearly never intended to create. So, once again, the purported Constitutional justification for the bill is revealed to be made entirely of meritless legal theories.
This leads to our second question, why isn’t a law like this pre-empted by the Tenth Amendment?
Since there is no legitimate power to regulate abortion granted to the Congress under the Constitution, one would think that conservatives, who have complained for years that the Courts have ignored Federalism and allowed more and more power to be accumulated in Washington, would be intensely interested about protecting those “state’s rights” that they talk about so frequently. Indeed, a frequent criticism from the right about the Supreme Court’s decision in Roe v. Wade is that, by finding a Constitutional right to abortion in the general sense, the Court “took the issue away” from the states where it properly belongs. If Roe is overturned, they tell us, all that will happen is that the issue will once again return to the states where, they claim, it properly belongs pursuant to the 10th Amendment. The fact that this means that abortion would be effectively illegal in much of the South and Mountain West is, I suppose, just a happy side benefit for them.
We also saw many appeals to the 10th Amendment during the debate over the Affordable Care Act and other measures that have come out of Washington in the past several years. Some conservative politicians and pundits have advanced ideas ranging from the discredited idea that the states have the authority to “nullify” Federal lawsoutright threats of secession to , not to mention rose-colored views of the Confederacy that seem to forget that it was nation built on the perpetuation of human slavery. States, we are told by people like this, are the true center of American sovereignty, not the national government. And yet here we have nearly every Republican in Congress voting in favor of a bill that purports to regulate something that they’ve said in the past should be left to the states. Where’s the consistency there, guys?
The answer, of course, is that there really wasn’t any concern about Constitutionality among the Republicans who pushed this bill to the floor for a vote. As I noted above, there was never any chance that this bill would get anywhere beyond the House of Representatives, and this was purely an appeal to the GOP base. The Constitution was an afterthought, as apparently is the political impact of the GOP yet again appearing to be the party that wants to restrict the rights of women. Of course, it does make you wonder how much they actually believe in that Constitution they all seem to carry around in their pockets.
