Can a Democratic Congress Protect Abortion if Roe is Overturned?

Jun 11, 2021 by David Fowler

Can a Democratic Congress Protect Abortion if Roe is Overturned?
The Washington Post ran a story this week headlined, “The Supreme Court may toss Roe. But Congress can still preserve abortion rights.” Assuming Democrats can get the votes in the U.S. Senate to enact the abortion-protecting legislation that was filed, the pro-life community may find that it paved the way for them arguing that such a law is constitutional. 
The argument the Post makes is straightforward:
There are two ways, not one, to safeguard reproductive rights: one by legislatures and the other by courts. And because the Constitution says that federal law reigns supreme over state laws, this insight also means that Congress can sweep away state laws that conflict with federal protections. 
The statement about the supremacy of the Constitution and Congressionally enacted laws (if they are within the powers of Congress) is correct. 
The Post continued:
Congress uses this power of “preemption” all the time — blocking states from having their own food and drug laws, employment rules, banking regulations and the like. Congress also frequently passes legislation to guarantee rights. Indeed, almost all of the major civil rights protections you have at your job or at restaurants or in hotels are guaranteed by Congress, not the courts or the Constitution.
That is mostly true. Some state laws are preempted because of Congressional action, but not all of them. States do have laws on most of these subjects, they just cannot conflict with federal law.
Then the Post correctly says:
Since the New Deal, the Supreme Court has given Congress broad powers over interstate commerce, and the case here would be ironclad, on par with the rationales that undergird civil rights laws and their prohibitions on discrimination in employment, restaurants and the like.
And it is here—with the Commerce Clause—that the pro-life community may have made a pro-life argument it will live to regret.

A Bad “Sort of” Precedent for the Pro-life Community

In 2003, the pro-life community successfully urged Congress to rely on the Interstate Commerce Clause to enact a law that prevented doctors and abortion clinics from performing partial birth abortions. The ban was upheld in Gonzalez v. Carhart in 2006 and the pro-life community rejoiced.  But here is the problem: Expect Democrats to argue that it if the Interstate Commerce Clause can be used to prevent an abortion, it can be used to protect abortion. 

The only saving grace for the pro-life camp that opened this Commerce Clause-abortion regulation can of worms is that Justice Thomas, in his concurring opinion in Gonzalez, noted that “whether the [Act] constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.” 

However, if the pro-life community now argues the Interstate Commerce cannot be used to justify abortion-related laws, they will have at least a public relations problem. The natural question will be why it changed its mind. In politics, if not in Supreme Court parlance, we would call this a flip flop, a we-believed-in-an-expansive-Commerce-Clause-power-over-abortion-before-we-didn’t.

How We Got Here

Hindsight is always 20-20, and so I blame no one. But the pro-life community resorted to Congress because it would not argue that Roe v. Wade was wrongly decided and that state legislatures had a duty, and therefore, the power to protect the right to life of all persons in their respective states.
The reason for not making that argument is that no one knew how to get around Roe v. Wade and its evil spawn, Planned Parenthood v. Casey. Again, hindsight is 20-20, but older, though still venerated precedents, were out there for making such an argument in defense of pro-life state laws. 
But what made those precedents invisible reflects a problem in the legal and judicial community. This is how I described the problem in my newest book, Recovering the Constitution-Using the Ninth Amendment to Restore Civil Liberty:
Jurists and lawyers, on the whole, have gotten so caught up in thinking about the latest Supreme Court opinion and how it relates to the last opinion on a similar subject that they can no longer see the Constitution as a whole. That is how I was taught to think in law school, opinion by opinion, so I am not pointing fingers but confessing my own “sins.”  Think of Court opinions as trees and the Constitution as the forest, and you will understand what I am saying. The legal profession has gotten to the point that few within it can any longer see the forest for the trees. 

There is one argument that can be made to return to the states their authority to regulate the practice of medicine in a manner that would allow them to prohibit abortion and have a compelling counterargument to the one the Post made. If successful, it could open the door for Congress to use its powers under Section 5 of the Fourteenth Amendment to nullify state laws that allow abortion.
As part of my penance for past political and juridical sins committed, I am putting that argument in two briefs for different groups of people that I propose to have filed with the U.S. Supreme Court in the Dobbscase involving the constitutionality of Mississippi’s 15-week abortion ban.
Stay tuned for more about the brief. If you would like to help fund the cost of preparing and printing the briefs, you can do so at this link. 
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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