Mark Joseph Stern, writing in Slate, suggests that I’m being “silly” and “ridiculous” in arguing that Congress has the constitutional authority to prohibit abortions after the twentieth week.
His first argument: “By its own terms, the [Fourteenth] amendment applies only to protections against government action. Its critical provisions begin, ‘No state shall make or enforce any law …’ Abortion is not a state action: It is a procedure that involves two private actors, a doctor and a patient.”
This is an odd way to make a common argument. Odd, because the language of the provision which I was discussing, the equal protection clause, does not start with those words. Here’s the full sentence: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The language gets a bit broader after the first semicolon: States aren’t just forbidden from making or enforcing laws that deprive people of liberty without due process of law; they are forbidden from depriving people of liberty without due process of law, period. So, for example, they can’t enforce a law in a way that deprives people of liberty without due process. And it’s that broader wording that applies to the equal protection clause.
Leaving aside Stern’s particular textual argument, what of the broader claim that the equal-protection clause should be read only to cover governmental acts? Well, back to the text: That idea, however widespread it is, just isn’t in there. Can private citizens deprive certain other private citizens of their lives while a state government looks on indifferently? If that’s not a denial of the protection of the laws—if the Fourteenth Amendment does not empower Congress to step in to provide that protection—then it’s hard to see how federal laws against lynching are justified.
Stern’s second argument concerns Supreme Court precedents. The Court has held that it gets to determine what rights the Fourteenth Amendment protects, that Congress does not have much independent power to interpret the amendment, and that the congressional role is to legislate consistently with the Court’s determinations. But the question I was addressing was not: Would a congressional ban on late-term abortion be consistent with the Supreme Court’s precedents? Or: Would the Court uphold a ban? Or even: Should the Court uphold a ban? It was, rather: Can a constitutionally conscientious legislator vote for a ban? I think the answer is yes, as it was also yes in the case of the law against partial-birth abortion. Without seeking to answer those other questions, I’ll also note that the partial-birth abortion ban has been upheld by the Court even though Stern’s arguments about the limits of congressional authority apply equally well, or badly, to it.