Can the Federal Government Regulate Abortion?

by Ramesh Ponnuru

Longtime Corner readers may remember that several years ago, Jonathan Adler and I went a few rounds on whether Congress was acting within its constitutional powers to ban partial-birth abortion. I said yes, and he said no. His argument was that even if Roe v. Wade were wrongly decided — even if, that is, states could legitimately prohibit abortion — the federal government lacks the legitimate authority to do so. No constitutional provision grants it the power to take action against abortion. (Professor Adler eventually retreated to the position that the partial-birth abortion ban merely contradicted the spirit of federalism, since the version eventually enacted included language limiting it to abortions affecting interstate commerce — language that has not kept the law from amounting to a national ban.)

No challenge to the federal law against partial-birth abortion on this ground ever went to the Supreme Court, and the Court upheld the law against the challenges that did come before it. (Some justices have, however, alluded to the argument.) Now that Congress is considering a ban on abortion after five months of pregnancy, Adler is renewing his argument, as is Glenn Reynolds, who also made it against the partial-birth abortion ban.

A few months ago I outlined a case for congressional authority in this area: The Fourteenth Amendment requires states to provide the equal protection of the laws to “any person” within their jurisdictions; the amendment further gives Congress the power to enforce its guarantees; congressmen may legitimately read “persons” to include unborn children after the fifth month of pregnancy; and so a congressman may vote to protect such children without violating the Constitution.

Adler’s response is twofold. First, he says that unborn children are not a protected class — whether he means under the Fourteenth Amendment, or under the Supreme Court’s interpretation of it, is unclear. Second, he says that congressional action to remedy equal-protection violations must be focused on state governments and not private actors (such as abortionists). This was one of the reasons the Supreme Court struck down part of the Violence Against Women Act in a decision “most conservatives cheer.”

This response seems to me to miss the point. The question I was considering was not “would a ban on abortions after five months comport with Supreme Court precedents on the scope of congressional power?” but rather “would this ban comport with the Constitution?” And I don’t think that the limits on congressional power that Adler mentions are plausibly grounded in either the text or the original understanding of the Constitution. That women and racial minorities are protected classes under the equal-protection clause, for example, and unborn children are not: This idea is nowhere in the Constitution, which phrases the equal-protection guarantee at a higher level of generality than that. The idea that Congress has no power to remedy a state’s failure to provide classes of persons with the most basic protection of the law is similarly absent from the Constitution, and the plain text of the amendment suggests otherwise.

So why should a constitutionally conscientious legislator feel himself bound by these ideas? It can’t be because the courts are guaranteed to strike down the law for which he is considering voting: As we have seen, the courts have not struck down the law against partial-birth abortion (or read its language about interstate commerce to shrink its practical effect). It can’t be because the Constitution requires them to extend the logic of Supreme Court cases even when the Court itself has declined to do so: There is no such duty.

Whether a legislator is thinking about the issues raised in the Violence against Women Act case, or Roe v. Wade, or City of Boerne v. Flores, or the Civil Rights Cases of 1883, the congressman should give careful consideration to the reasoning of the case, and in many instances will also wish to give careful consideration to whether legislation he is thinking about backing will be struck down because of the reasoning in the case. But if he thinks that the Court was wrong in its relevant conclusions, and thinks either that the Court will shrink from applying those conclusions to this legislation or that it’s worth passing the law even if the Court strikes it down, then precedents should not slow him down.

We are, again, considering the case of a legislator who believes that unborn children past the fifth month of pregnancy are persons whom the law should protect from homicide. This legislator may have valid prudential reasons to prefer that legislation protecting these children be enacted at the state rather than the federal level. He may even have prudential reasons for thinking it dangerous to pass such legislation at the federal level. What I don’t think he has is any reason to think that he is acting out of conformity with the Constitution in favoring it.

P.S. Tom Meyer, writing at Ricochet, objects to my equal-protection argument on the ground that the Fourteenth Amendment says that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside” (emphasis his). If that language had been repeated in the equal-protection clause, it would be a decisive objection to my argument. It isn’t repeated there. The clause applies to “any person” within a state’s jurisdiction, not just to citizens. You don’t have to be born or naturalized in the U.S. for states to owe you equal protection of the law (or, for that matter, due process of law).

P.P.S. Meyer has updated his post, and I’ve given him his actual first name.

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