Enacting a Federal Abortion Law Would Require Nuking the Legislative Filibuster

I f Roe is overturned, would the legality of abortion really depend on state laws, or would Congress step in to enact a policy for the entire country?

That question has been asked by Ilya Somin at Reason and Allahpundit at HotAir in recent days, but the answer depends first on something neither writer addresses: the filibuster.

In order to enact any meaningful federal law that would either enshrine a nationwide right to abortion or generally limit/prohibit abortion, the Senate would first need to abolish the 60-vote hurdle for legislation. Over the past four decades, one political party has controlled the 60 Senate seats necessary to overcome a legislative filibuster for just a matter of months — from July 2009 (when Democrat Al Franken of Minnesota took his seat) until February 2010 (when Republican Scott Brown of Massachusetts took his seat). At all other times over the last four decades, there needed to be at least some bipartisan cooperation in the Senate to pass legislation outside of the budget-reconciliation process, which requires a simple majority but is subject to complex rules. Given how polarized the parties are on the issue of abortion and how unlikely it is that either party will control 60 Senate seats, the House majority, and the White House at the same time, nuking the filibuster is almost certainly a prerequisite for any new federal abortion law. (It does appear likely that Democrats could fund abortion on demand through the budget-reconciliation process.)

But if the Senate abolishes the filibuster? We likely would see the enactment of significant abortion laws when either party holds the trifecta of the House, Senate, and White House.

Allahpundit writes that so long as “Democrats control the White House and/or either chamber of Congress, the states will have free rein on setting their own abortion policies.” But, in fact, we know that Democrats would try to pass a federal abortion law because House Democrats voted almost unanimously in September for the deceptively named Women’s Health Protection Act, which would wipe away almost all existing state laws restricting abortion. The bill would effectively enshrine Roe v. Wade and Doe v. Bolton in federal law, thus establishing a virtually unlimited nationwide right to abortion throughout all nine months of pregnancy.

For the foreseeable future, I think there’s almost no chance that Senate Republicans would be the ones to abolish the filibuster. The current terms of GOP senators Mitch McConnell, Susan Collins, and Ben Sasse end in 2027. McConnell is never going to strike first at the legislative filibuster. Collins supports a right to abortion. Sasse, a staunch pro-lifer, has explicitly warned that abolishing the filibuster would cause wild national policy swings on many issues, including abortion.

While it’s almost unthinkable that Senate Republicans would nuke the legislative filibuster anytime soon, if Democrats do it, then we know that Republicans would indeed try to enact some national limit on abortion if the GOP holds the trifecta. But it’s not clear exactly where they would try to draw a line at first.

Since 2013, House and Senate Republicans have voted almost unanimously for the Pain-Capable Unborn Child Protection Act, a bill that would establish a 20-week nationwide limit on abortion.

Scientific knowledge of when a human being is first capable of feeling pain continues to evolve. As neurobiologist Maureen Condic wrote in National Review:

Stuart Derbyshire, a brain-mapping researcher and pro-choice consultant, was, until recently, considered “a leading voice against the likelihood of fetal pain.” Indeed, he was one of only two neuroscientists on the panel that produced the 2010 Royal College of Obstetricians and Gynaecologists (RCOG) report that rejected the possibility of fetal pain before 22 weeks. Yet, faced with mounting scientific evidence to the contrary, Derbyshire just last year abandoned his prior position and concluded that even without a fully formed cortex, neural connections from the thalamus to the subplate could be sufficient for pain perception. Derbyshire now holds that “the evidence, and a balanced reading of that evidence, points toward an immediate and unreflective pain experience mediated by the developing function of the nervous system from as early as 12 weeks.”

For pro-lifers who believe that federal legislation protecting the lives of unborn babies is authorized by the 14th Amendment or the commerce clause (or both), the only real restraint on federal legislation would be political prudence, of course. Marjorie Dannenfelser of the pro-life Susan B. Anthony List told The New Yorker: “I think a fifteen-week limit could pass Congress in a couple of years. Of course, we need a President and majorities in both houses, which we don’t have, but that I see as a reasonable goal.”

If either Democrats or Republicans enact a federal abortion law, then the big question is whether the Supreme Court would strike it down. In 2007, the Supreme Court upheld the federal partial-birth abortion ban (which simply banned one particular method of abortion). But Justice Thomas wrote in a concurrence (which Justice Scalia joined): “I also note 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.”

In his post, Somin discusses the possibility that Justice Thomas would hold that Congress does not have authority under the Commerce Clause to regulate abortion. But it’s important to note that one of the findings in the text of the Pain-Capable Unborn Child Protection Act is that Congress has the authority to enact the bill under both Supreme Court commerce-clause precedents and the 14th Amendment: “​​Congress has authority to extend protection to pain-capable unborn children under the Supreme Court’s Commerce Clause precedents and under the Constitution’s grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment.” (For the case that Congress has the constitutional authority under the 14th Amendment to protect the lives of babies in utero from lethal violence, read Ramesh Ponnuru.)

It’s hard to say how the Supreme Court would view any federal law establishing or limiting a right to abortion. During oral arguments, Justice Kavanaugh raised the possibility that Congress might be able to pass laws on abortion: “As I understand it, you’re arguing that the Constitution’s silent and, therefore, neutral on the question of abortion? In other words, that the Constitution’s neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process?” Perhaps. Perhaps not. But unless Democrats hold the House and pick up a couple Senate seats in 2022 and then nuke the filibuster in 2023, America won’t be getting a federal law protecting or limiting abortion anytime soon.