Yesterday, Alexandra noted that:
This evening, the Senate failed to invoke cloture and proceed to a vote on the Women’s Health Protection Act, a radical piece of pro-abortion legislation that “codifies Roe v. Wade,” establishes a fundamental right to abortion on demand, and nullifies state pro-life laws across the country. It was a 46-48 vote with six senators not voting.
This is good news, of course. And, like so many other pro-life conservatives, Alexandra is correct to note that this bill was downright evil in its intent. But I wish she — and others who oppose the move — would also make the related case against the bill, which is that it’s clearly, flatly, stonkingly unconstitutional.
The federal government enjoys only the limited powers that are delegated to it by the federal Constitution, and setting abortion policy is obviously not among them. Abortion is not “Commerce,” as that term was originally understood by the public — and nor is it a tax, duty, impose, excise, debt, or credit; a rule of naturalization or bankruptcy; a standard or weight of measure; a punishment against counterfeiting; a post office or postal road — or the use of them; a type of patent; a lower court; an example of piracy or felony committed on the high seas; a matter of war, or a letter of marque and reprisal, or an army or navy; or a calling forth of, or disciplining of, the militia. Abortion is not spending; it’s not naturalization policy; it’s not the addition of a new state or territory; it’s not the time, place, or manner of a federal election. Nor, in either direction, does abortion come within the purview of any of the 27 amendments that have been added to the Constitution since 1787. It is, in short, precisely the sort of question that is reserved to the people and to the states, and any Supreme Court decision that has concluded to the contrary is wrong — yes, including the 2003 law that prohibited the abomination that is partial-birth abortion, and which should have been struck down by the Court for lack of an enumerated power to justify it.
Like the Supreme Court, Congress simply does not have the power to decide this question for the states. That is not what Congress is for, or has ever been for. There is no generalized police power vested in the federal government, and it is not permitted to exercise one simple because Americans feel strongly about the question from both sides. There exist a handful circumstances in which the federal government may regulate the killing of human brings — if a murder victim is a federal judge, federal official, federal law enforcement officer, or is killed at sea or on federal property, for example — but, outside of those narrow confines, there are no national laws prohibiting (or mandating) homicide, because there is no federal power to prohibit (or mandate) homicide.
It would be utterly extraordinary if, having spent fifty years trying to convince the public and the courts that the Constitution is silent on abortion, conservatives applied this principle only to the judicial branch. Roe v. Wade is bad law because it involves judges usurping power that does not belong to them. What the Democrats tried to do yesterday is bad for the same reason — and it should be resisted with equal enthusiasm and vigor.