In answering a reporter’s questions in a USA Today interview, Senate Republican leader Mitch McConnell said it is “possible” that Congress could enact a national abortion ban if the Supreme Court were to issue a final ruling in Dobbs that is consistent with a draft opinion, leaked last week, which would overturn the Court’s fabrication of a constitutional right to abortion in Roe v. Wade (1973).
Senator McConnell’s remarks are being over-interpreted by critics, who wrongly perceive in them Republican enthusiasm to enact a national ban. Even more extravagantly, and wrongly, these critics derive from McConnell’s supposition about what’s “possible” a betrayal of the long-time conservative position that abortion is a matter for regulation by the states.
The draft opinion was written by Justice Samuel Alito, and the Court has confirmed its authenticity while stressing that it is not a binding final decision. The draft would overrule Roe and Planned Parenthood v. Casey (1992). The latter overhauled Roe but maintained its bottom-line holding.
The Alito draft would reinstate the pre-1973 status quo, in which abortion was the subject of legislative regulation because the Constitution does not speak to it – neither permitting nor banning the practice. Because regulation of medical procedures is principally a state-law concern, the states should do the relevant legislating – and certainly would have in the 1970s, prior to the large-scale federalization of health care in the ensuing half-century.
McConnell did not say that there should be a congressionally enacted ban on abortions. He merely acknowledged that such a ban was possible as a theoretical matter. It would be wrong to say otherwise, both constitutionally and tactically.
Congress has already used its commerce clause power to regulate abortion. Best known is the 2003 partial birth abortion ban, which is codified in the federal penal code (Section 1531). This statute was upheld by the Supreme Court, over a broad array of constitutional challenges, in Gonzales v. Carhart (2007). Obviously, then, even those of us who believe Congress’s commerce clause power has long been hyper-extended, allowing Washington to intrude on what should be state sovereignty, must acknowledge: Congress has regulated abortion and much else in the realm of medical practice. There is no reason to believe the Supreme Court would suddenly invalidate such regulation on federalism grounds.
Moreover, the Democrats, for whom federalism is never a concern (except when Republicans start contemplating national action) are actively mobilizing to codify Roe — i.e., to enact a national abortion right — regardless of what the Court ultimately does in Dobbs. It would be incompetent politics for Republicans to disavow whatever constitutional authority they have to prohibit abortion when Democrats are trying to use that same authority to permit abortion on the broadest terms (essentially, abortion on demand — for any reason, at any time — prior to birth).
As a practical matter, the only thing that will convince Democrats to leave abortion to the states — i.e., convince enough congressional Democrats to back off, such that the “codify Roe” initiative loses steam — is fear that if Democrats go the national legislation route, Republicans would proceed with a national ban when they have sufficient votes to do so.
Nevertheless, McConnell was not promoting a national ban. He said any discussion of it is “premature.” The biggest obstacles to a national ban are Roe and Casey. Unless Dobbs overrules them, there is, legislatively speaking, nothing to talk about.
As Rich and I discussed on the podcast, Justice Alito’s opinion is a February draft. It is fair to glean from it that five justices (presumably, Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) preliminarily voted to overturn Roe and Casey when the Court conferenced the Dobbs case after hearing oral argument late last year. That is promising news for the pro-life side, but it is far from certain at this point that the Court’s final ruling in Dobbs will reflect a draft from three months ago.
Though there has been some speculative reporting about where things now stand, we simply don’t know. Publicly, whether the draft has been refined, and whether the majority for overturning Roe and Casey still holds, are unanswered questions. Even though the radical Left, egged on by the Biden administration and prominent Democrats, has made it the occasion for the usual thuggish intimidation tactics, the Alito draft is just a draft. It is not the Court’s decision, and may never be.
If sometime between now and late June, the Court formally issues a Dobbs opinion consistent with Justice Alito’s draft, Republicans would need to step up their efforts to beat back the Democrats’ drive to codify Roe.
Clearly, the first GOP position should be that abortion is a state issue. It would be best for the country if people were governed by the government that is closest and most responsive to them. But Democrats are hell-bent on nationalizing the issue through legislation, regardless of whether they lose Roe’s judicially imposed national edict. Republicans must not forfeit the prerogative to respond in kind.