The Democrats’ abortion bill is not just radical. It’s unconstitutional.
WASHINGTON » 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,” in President Joe Biden’s turn of phrase, 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 The Democrats’ bill “far exceeds Roe,” she declared, pointing out that it would have superseded “longstanding, bipartisan conscience laws .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.
That’s not all. The bill would have made it virtually impossible for states to enforce prohibitions on abortion after fetal viability and expressly barred states from passing any law that “singles out the provision of abortion services, health care providers who provide abortion services, or facilities in which abortion services are provided; and . . . impedes access to abortion services.” It would effectively have made abortion legal at any point in a pregnancy without meaningful restriction.
If the Supreme Court strikes down Roe, this would be unconstitutional. The court has ruled that Congress cannot overturn its decisions interpreting the Constitution. As John Yoo, a law professor at the University of California at Berkeley and senior fellow at the American Enterprise Institute, 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.’ “
Case in point: In 1990, the Supreme Court ruled in Employment Division, Department of Human Resources of Oregon v.
Smith that the denial of unemployment benefits to a member of the Native American Church who was fired for using illegal peyote in a religious ceremony did not violate his First Amendment rights. Congress tried to override the court’s decision by passing the Religious Freedom Restoration Act. But the court then struck down provisions of the act as they applied to states in City of Boerne v. Flores, ruling that they were “beyond congressional authority” because they represented a “congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.” It further ruled that although Congress has the power to enforce a constitutional right, it cannot change “what the right is,” because Congress’s power is “corrective or preventive, not definitional.”
What this means, Yoo says, is that 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 prochoice 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.
In United States v. Lopez, the court held that the Gun-free School Zones Act was unconstitutional because the noneconomic nature of gun possession in a school zone meant Congress lacked authority to regulate it. Similarly, in United States v. Morrison, it struck down parts of the Violence Against Women Act because, as Chief Justice William H. Rehnquist wrote for the majority, “Gender-motivated crimes of violence are not, in any sense, economic activity.” The same is true for abortion.
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?
Answer: Because Senate Majority
leader Charles Schumer, D-N.Y., wanted an absolutist bill that he hoped would energize his moribund base. Instead, he has highlighted for the nonradical majority of voters just how far out of the mainstream Democrats have become on abortion.
Internal polling released last week 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 also found that 54% agree that states should be able to establish their own laws regarding abortion, and only 30% say that the United States should allow abortion any time, for any reason, while 61% disagree.
Schumer got only 49 votes — not even a simple majority — for his radical legislation. All he accomplished was to put every single Senate Democrat (save one) on record in support of abortion-on-demand up until the moment of birth. That’s not just morally perverse and manifestly unconstitutional; it is also politically incompetent.