Congress powerless to legislate on abortion
Critics of constitutionality of Obamacare somersault
Senator Lindsey Graham (R-S.C.) and Representative Chris Smith are supporting legislation, the Pain-Capable Unborn Child Protection Act, which would generally ban abortion after fifteen (15) weeks of pregnancy. The legislation is born of an epidemic of constitutional illiteracy. The Constitution does not endow Congress with authority to regulate abortion. Abortion policy is entrusted to the States, a conclusion reinforced last year by the Supreme Court in Dobbs v. Jackson Women’s Health Organization. The question is free from doubt.
The Graham-Smith legislation recites twin constitutional anchors as justification: the authority of Congress to regulate interstate commerce in Article I, section 8, clause 3; and, the authority of Congress under the equal protection and due process clauses of section 1 plus the enforcement power under section 5 the Fourteenth Amendment. Both anchors are patently deficient.
The Supreme Court has emphasized that legislation under the Commerce Clause must be directed at economic activity. It cannot be a featherweight in legislation whose predominant if not exclusive purpose is noneconomic. Thus, the Court struck down a federal law prohibiting gun possession near schools in United States v. Lopez (1995). It similarly voided a federal law providing a federal forum to adjudicate claims based on violence against women in United States v. Morrison (2000).
The Pain-Capable Unborn Child Protection Act makes 22 findings. Not a single one is within shouting distance of economic activity. Finding 13 is exemplary: “[T]here is substantial medical evidence that an unborn child is capable of experiencing pain at least by 15 weeks gestational age, if not earlier.”
Republicans in Congress laughed at President Barack Obama’s lassoing the Commerce Clause to justify the Affordable Care Act’s regulation of individuals who had refrained from commercial activity in NFIB v. Sebelius (2012). The Supreme Court agreed. But these same Republicans are undisturbed by the constitutional overreach implicated in federal regulation of abortion. Are their constitutional principles like restricted railroad tickets, good for this day and train only?
Section 5 of the Fourteenth Amendment fares no better than the Commerce Clause. The Supreme Court held in City of Boerne v. Flores (1997), that section 5 does not empower Congress to compel states to adhere to standards that go beyond the equal protection or due process prescriptions of section 1. In other words, Congress cannot act under section 5 absent proof that states are violating the constitutional floor of section 1. But the Graham-Smith legislation does not and could not make any finding that the many States that permit abortions that would be prohibited by the federal bill are violating the Fourteenth Amendment.
There is not a single word in any Supreme Court decision in history that even insinuates that a state is constitutionally required to limit abortion. As the Dobbs decision repeated ad infinitum, abortion is a political-moral question. The Constitution does not take sides. Justice Samuel Alito declared that a abortion presents a “moral” issue to be addressed by the people and their elected representatives. The Fourteenth Amendment permits States to place either zero limits on abortion or to ban abortion entirely. Think of the absurdity of the Supreme Court attempting to compel a State to enact anti-abortion legislation by dictating the text and directing legislators how to vote.
Article VI of the Constitution requires Members of Congress to support and defend the Constitution. Sponsors of the Pain-Capable Unborn Child Protection Act are unfaithful to that oath.