Democrats push radical, unconstitutional abortion bill

If Democrats wanted to show how out of touch they are with the American people on abortion, they could have found no better way than voting for the failed Women’s Health Protection Act, the radical bill that would have created a national right to abort a child up until the moment of birth.

“Make no mistake, it is not Roe v. Wade codification,” said Sen. Joe Manchin III, D-W.Va., who supports codifying Roe but voted against the bill. “It wipes 500 state laws off the books. It expands abortion.”

Sen. Susan Collins, R-Maine, who introduced her own legislation to codify Roe, agrees. The Democrats’ bill “far exceeds Roe,” she declared, pointing out that it would have superseded “longstanding, bipartisan conscience laws … that protect health care providers who choose not to offer abortion services for moral or religious reasons.” It also would have overturned long-standing state laws upheld by the Supreme Court, such as those requiring informed consent or waiting periods, prohibiting sex-selection abortions, and requiring parental or guardian notification for minors seeking an abortion.

The bill would have made it virtually impossible for states to enforce prohibitions on abortion after fetal viability. It would effectively have made abortion legal at any point in a pregnancy without meaningful restriction.

If the Supreme Court strikes down Roe, this bill would be unconstitutional. The court has ruled Congress cannot overturn its decisions interpreting the Constitution. As John Yoo, a law professor at the University of California at Berkeley, told me, Congress cannot “go out and just say: ‘Well, the Supreme Court just did this. We’re going to change it. We just order all the states to obey our law, not the Supreme Court decision.’ “

If the Supreme Court declares there is no constitutional right to abortion, Congress cannot then pass a law creating such a right and command Texas or Mississippi to change its abortion laws. This should be a relief to those on the pro-choice side, because it would also mean that Congress cannot command blue states to ban abortion by passing a national abortion ban.

Defenders of the legislation argue that Congress can create a right to abortion under its commerce clause power. This is incorrect. The court has previously struck down legislation because Congress exceeded its powers under the commerce clause, which it has ruled gives Congress the authority to regulate only those activities that are directly economic in nature, not those with indirect economic effects.

Why would Democrats vote on an unconstitutional bill that had no chance of passing? And why would they reject a compromise with Collins and Sen. Lisa Murkowski, R-Alaska, that would have given their effort a veneer of bipartisanship?

Because Senate Majority leader Charles Schumer, D-N.Y., wanted an absolutist bill to energize his moribund base. Instead, he has highlighted for the nonradical majority of voters just how far out of the mainstream Democrats are on abortion. Internal polling released by the National Republican Senatorial Committee shows that 53% of Americans would be more likely to vote for a Republican candidate who supports reasonable restrictions on abortion, while just 28% of voters would be more likely to vote for a Democratic candidate who supports no abortion limits. The poll found 54% agree that states should be able to establish their own laws regarding abortion, and only 30% say the U.S. should allow abortion any time, for any reason, while 61% disagree.

All Schumer accomplished was to put every Senate Democrat (save one) on record in support of abortion-on-demand up until the moment of birth. That’s not just immoral and unconstitutional; it is politically incompetent.