Reviews | Congress cannot legislate abortion. Both Schumer and Graham are wrong.

John Yoo is a professor of law at the University of California, Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting scholar at the Hoover Institution.

Last spring, when the Supreme Court overturned Roe vs. Wade loomed, congressional Democrats made the mistake of attempting to impose right to abortion nationwide. Now, some Republicans want to return the favor by seeking to ban all abortions after 15 weeks of pregnancy. Abortion rights and anti-abortion proposals attack the constitutional structure, which protects the right of states to decide fundamental moral questions.

In his Dobbs v. Jackson Women’s Health Organization decisionthe Supreme Court struck down roe deerdiscovered a woman’s right to abortion in the 14th Amendment, which prohibits the state from depriving anyone of “life, liberty, or property, without due process.” The court concluded in June that roe deer had fundamentally erred because it nationalized a right that was neither established by the constitutional text, as originally understood, nor developed over the course of American history and tradition. When the Constitution is thus silent, the court said, the political process in the states will decide abortion, just as it decides the death penalty and euthanasia.

As Justice Samuel A. Alito Jr. said for the majority, “It is time to uphold the Constitution and return the issue of abortion to the elected representatives of the people. Quoting the scathings of Judge Antonin Scalia CONTESTATION in Family planning c. Casey in 1992, Alito asserted how the Constitution should deal with most moral issues: “The authorization of abortion, and its limits, must be resolved as the most important questions of our democracy: by citizens who try to persuade each other and then vote. Alito and the majority bluntly concluded, “This is what the Constitution and the rule of law require.

The enterprising members of Congress were not discouraged. Immediately after the Dobbs draft notice leaked in May, Senate Majority Leader Charles E. Schumer (DN.Y.) proposed that Congress codify roe deer. He couldn’t even persuade a majority of his own Democratic-controlled Senate to support him. Now Sen. Lindsey O. Graham (RS.C.) this week introduced legislation banning abortion nationwide after 15 weeks of pregnancy, while allowing states to enact even stricter limits.

Schumer and Graham and anyone else who tries a similar ploy should be warned: the Constitution does not allow Congress to directly overrule a Supreme Court decision. In the 1997 case City of Boerne against Flores, the court confronted the Religious Freedom Restoration Act, legislation that contravened a court ruling that had itself overturned previous court cases protecting religious freedoms. Congress asserted that it had authority under Section 5 of the 14th Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions” of the 14th Amendment.

Likewise, Congress could claim that it has the right to impose its own understanding of “freedom” in the due process clause to include abortion (Schumer), or “life” to prohibit abortion. (Graham).

Borne, however, struck down the Religious Freedom Restoration Act. Judge Anthony M. Kennedy wrote for the court: “Legislation that alters the meaning of the free exercise clause cannot be said to enforce the clause. Congress does not enforce a constitutional right by changing what the right is. The power to determine rights under the 14th Amendment rests with the Supreme Court, not Congress. Borne condemns any effort by Congress to nullify Dobbs.

In their failed attempt to codify roe deerSenate Democrats also relied on the interstate commerce clause, which did indeed provide authority for some sweeping rights — but not enough to support regulation of the entire medical profession, especially as the court over the past few decades has decided to restrict congress’s use of the trade clause in legislation.

A 1995 ruling struck down a law that banned guns in school zones, and in 2000 the court struck down a federal law making gender-based violence illegal that crossed state lines. In both cases, the court held that the federal government could not use the trade clause to encroach on the states’ criminal law prerogatives. Graham’s bill would represent another unconstitutional invasion of state authority to regulate crime or the professions.

Congress has indirect means to influence abortion policies through its purse power. It could provide vouchers or tax credits to pregnant women who have to travel to pro-choice states. Or a pro-life Congress could cut federal health care funds for states and hospitals that perform abortions. But these measures would only marginally affect abortion rights.

As Judge Brett M. Kavanaugh wrote in an agreement that provided the crucial fifth vote to overturn roe deer“The Constitution is neutral and leaves the problem to the people and their elected representatives to resolve through the democratic process in the states or Congress – like the many other difficult questions of American social and economic policy that the Constitution does not address.”

Graham’s bill, like Schumer’s, simply seeks to avoid the hard political work of making good faith arguments in an effort to persuade Americans on the fundamental moral issue of abortion.

About Michael S. Montanez

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