If the Supreme Court finally overturns Roe vs. Wade this summer, Congress can no longer blame the Supreme Court for its failure to act to protect human life in the womb. There will be more pressure than ever on pro-life lawmakers to take courageous action to support pregnant women and protect human life in the womb. What should this post-deer legislative program looks like?
In addition to legislation that meaningfully supports families and pregnant women, lawmakers should introduce strong anti-abortion legislation that recognizes the personality of the unborn child, strips federal courts of jurisdiction over the law, and gives individuals the power to enforce it through a private right of action. And if such powerful medicine is too politically impractical, pro-life lawmakers should at the very least tax abortion providers and abortion pill makers as a mechanism to promote pro-life social policy.
Recognize the unborn personality
More importantly, Congress must recognize that unborn children are legal and constitutional persons within the meaning of the Fifth and Fourteenth Amendments. This is not a new idea: every Republican party Platform dating back to 1984, called for “legislation to make it clear that Fourteenth Amendment protections apply to children before birth.”
Like me and others explained, unborn children are “persons” in the original public sense of Section 1 of the Fourteenth Amendment, which provides that no state may “deprive any person of life, liberty, or property , without due process of law” or denying anyone “equal protection of the laws”. State laws that permit voluntary abortion and discriminate against generally applicable homicide laws violate this constitutional principle.
Recognizing personality is an exercise of Congressional responsibility under Section 5 of the Fourteenth Amendment, which grants Congress “the power to enforce, by appropriate legislation, the provisions of” the Fourteenth Amendment. Although the Supreme Court and the executive branch both have an important role to play in ensuring that constitutional rights are guaranteed for unborn children, Section 5 gives Congress primary law enforcement authority.
Thus, Congress should enforce constitutional guarantees of due process and equal protection of laws for unborn children across the country, preventing states from giving effect to permissive abortion laws. Such legislation could provide, for example, that no state or person acting under the law of a state (or in interstate commerce, alternatively) may discriminate on the basis of birth or not of a human being. The law should apply specifically to any state prohibition against homicide and require that anyone who commits an abortion be subject to the same or comparable penalties that exist under state law for others. homicide case.
Remove the jurisdiction of the federal courts
Abortion supporters would no doubt sue to prevent a law like this from taking effect, and with enough penalty shootouts could likely find a judge to issue a nationwide injunction. The solution to this overbreadth is to eliminate the power of the federal courts to hear these abusive suits. Lower federal courts are created by law and their jurisdiction may be limited by law. As Judge Clarence Thomas Explain for a Supreme Court plurality in a 2018 case, “when Congress strips the federal courts of jurisdiction, it exercises valid legislative power at least when raising taxes, minting money, declaring war or invoke any other power that the Constitution grants this.”
The Supreme Court is created by the Constitution, not by statute, but Article III, Section 2 empowers Congress to make “such exceptions” to its federal appellate jurisdiction as Congress deems appropriate. Again, Justice Thomas: “Congress generally does not violate Article III when it strips federal jurisdiction over a class of cases”; on the contrary, “[t]a constitutionality of disqualification laws. . . is well established.
Congress can, and should, remove the jurisdiction of all federal courts to hear any cause or claim—including constitutional claims—challenging the validity of Congressional character recognition and prohibition of permissive state laws on ‘abortion. By removing from federal jurisdiction cases that challenge the validity of its personality recognition, Congress can defend its determination against interference by unelected federal judges.
Create a private right of action
Unfortunately, because pro-lifers cannot rely on prosecutors or the administrative state to enforce their legislative preferences, it is good policy to delegate the public to help ensure compliance with Congressional pro-life legislation. . To prevent non-enforcement, Congress should give individuals a cause of action to sue anyone – including any federal, state, or local official – acting under state law or in interstate commerce to deprive an unborn child of the rights guaranteed by the Fifth and Fourteenth Amendments (and laws made under those amendments).
Texas has led the way in allowing citizens to use private rights of action to enforce anti-abortion policy in its country. SB 8 Legislation (which prohibits abortion after an unborn child’s heartbeat is detected), but private rights of action are also common and effective in many other policy areas. Many states, like California, allow anyone to sue to enforce laws that focus on unfair competition, false advertising, privacy, civil rights, and many other areas. Federal law permits private suits to enforce environmental protection laws, credit reporting laws, and anti-trafficking laws, to name a few. There is nothing new or unprecedented in the use of this enforcement mechanism, and nothing less could guarantee that the law will be vigorously enforced.
Using the power of taxation to cripple the abortion industry
A bill with these three characteristics would have an important message and educational purpose. But of course, such a bill would be unlikely to pass the sixty-vote Senate threshold to avoid filibuster and reach closure even after the 2022 midterm elections (let alone survive to a presidential veto). So in the meantime, another tactic is warranted: pro-life lawmakers should levy a tax on abortion providers. This provision could be signed into law with fifty-one Senate votes as part of the reconciliation process, and could be added to mandatory legislation.
Chief Justice John Marshall was right when he said “the power to tax is the power to destroy”. Although current Supreme Court doctrine does not allow Congress to use its taxing power to punish private behavior, it comes very close. Chief Justice Roberts notoriously upheld the Affordable Care Act on this basis, in writing that the Supreme Court “will decline to scrutinize the motive or regulatory effect of revenue-raising measures”, until the tax “become so punitive that the taxing power does not permit”.
Just as the taxing power of Congress has been used to anything but banning automatic firearms and to effectively oblige individuals to take out health insurancea “special sin tax” on abortion providers and abortion pill manufacturers (perhaps $2,500 for each abortion performed or pill prescribed) could, consistent with Supreme Court precedent, regulate individual behavior and cripple the abortion industry.
Inaction is unacceptable
Once the Supreme Court decided Dobbs, members of Congress and women who have shown up on pro-life platforms will have a clear pathway to act on their campaign promises to protect human life in the womb. After decades of tragedy and intense effort, grassroots pro-life voters expect their elected officials to do everything in their constitutional power to protect life. Pro-life lawmakers should seize the opportunity to pass post-deer legislative program that both allows parents to raise their children and effectively prohibits abortion. Both objectives are well within the constitutional power of Congress.