Contributors to this fair Corner have been debating whether the federal government has the constitutional power to prohibit abortion for pretty much its entire history. So I wasn’t surprised that our editorial endorsing a federal ban on abortions after 15 weeks would generate dissent. I am a little surprised at some of the forms that dissent has taken. Rather than respond in detail to each of my colleagues individually — here’s Andrew McCarthy, Charles Cooke, Andy again, Philip Klein, and, on the side of truth and righteousness, Alexandra DeSanctis – I’ll address what I see as their main points.
Let’s start with a brief sketch of the constitutional argument for a congressional power to prohibit abortion.
The 14th Amendment to the Constitution obviously grants powers to the federal government, and specifically to Congress (Sec. 5), that it had not previously had. Those powers include enforcing (Sec. 5 again) the guarantee that all states supply equal protection of the law to all persons (Sec. 1).
What does “equal protection of the law” mean in historical context? Here’s how two originalists recently summed up what they (correctly, as far as I can tell) say that “much modern scholarship suggests”: The equal-protection clause “stated a . . . limited principle about equality in the protection of the laws: ‘those activities of government that secure primary rights against invasion,’ per Blackstone’s description” (emphasis in original, footnotes omitted). As another originalist puts it, the clause concerns “the right to protection from violence and the right to a remedy.”
Assuming that unborn children are persons, states that permit elective abortion are denying some persons the right to protection from lethal violence. If Congress may legitimately find that unborn children qualify as “persons” who deserve the protection of the laws it is supposed to safeguard — see here for a brief that makes that case and indeed goes further — then Congress has the constitutional power to act to remedy states’ dereliction and may even have a constitutional duty to act where possible. See also this law-review article arguing similarly.
One may agree or disagree with this argument. None of my colleagues here attempts to rebut it — which is understandable, perhaps, given that the editorial merely alluded to it in passing. Instead they offer various reasons for dismissing any argument that yields the result that Congress may act against abortion. Presumably this view entails thinking that Congress should repeal or the Supreme Court should strike down the federal law against partial-birth abortion.
The proffered reasons for dismissal? The argument that the equal-protection clause implies a federal power to restrict abortion is, according to my colleagues, a betrayal of originalism, a “fringe theory,” and a “bait-and-switch.” None of this should, I think, give conservatives any pause.
The argument is an example of originalism rather than a departure from it. The argument starts with the constitutional text and attempts a historical recovery of its meaning and an application to a current issue. Perhaps it is an unsuccessful originalist argument, but that would require a showing that none of my colleagues (again, perhaps understandably) has even tried to make.
It is every bit as originalist as other arguments that conservatives regularly advance. The argument that Congress can’t delegate its power to impose tariffs to a president, which Cooke embraces, has less going for it: The textual implication is weaker, the historical evidence murkier. It’s no less originalist, or mainstream, than McCarthy’s argument that states have primary authority over immigration policy.
In the run-up to the 2012 Obamacare case, nearly all conservatives insisted that the federal government has no power to mandate purchase of health insurance. Four and a half justices ended up agreeing. They were right to do so, even though the best originalist argument for their position rested on an inference from assertions and silences in the Constitution rather than on a specific constitutional provision such as the equal-protection clause. For that matter, the argument for judicial review itself can’t be pinned in an obvious way to any specific provision of the Constitution.
As for the idea that taking federal action against abortion is a “bait and switch”: That accusation picks out some pieces of pro-life political rhetoric and gives them a maximalist spin while ignoring a lot of other pro-life talk and action. The argument that the 14th Amendment authorizes pro-life laws is not a recent invention. The Republican platform has declared that “we endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children” in every presidential election starting in 1984. The 20-week abortion limit passed by the House of Representatives in 2013, 2015, and again in 2017 explicitly cited the Equal Protection clause of the 14th Amendment as a source of constitutional authority to protect the lives of unborn children. A real bait and switch would be for congressional Republicans to abandon legislation they have almost unanimously supported.
Nor is the federal time limit the first example of Republican legislation to provide federal protection to unborn human beings. It took more than a decade of (very nearly unanimous) conservative effort to pass a federal ban on partial-birth abortion and then defend it in court. (The theory that it unconstitutionally intrudes on state authority over abortion has never so much as generated a case; perhaps we should call it “fringe”?)
It’s true that conservatives often said of abortion that the Supreme Court should “return it to the states.” The Court had illegitimately blocked states’ laws against abortion and we rightly urged it to get out of the way. Rarely, though, did any conservative make the mistaken claim that the Constitution says abortion is an exclusively state matter. (The Republican platform denied any such thing.) And abortion policy would remain largely a state matter, in practice, even if Congress enacted a 15-week ban. “There would be much looser abortion laws in, say, Massachusetts and New York than in Alabama or Mississippi,” just as Klein says there should be.
For Klein, there are “federalist principles” separate from the constitutional argument. There may indeed be some good reasons to avoid federal action even in an area where the Constitution allows it, and he mentions one, the possibility that state-by-state debate will be less divisive than a federal one. But that’s not really a principle. It’s a consideration, weaker and stronger depending on circumstance, and defeasible by other considerations. I think it is a weak one here — it is not at all obvious to me that our country will find arguing about a 15-week federal ban more divisive than we find arguing about state abortion laws (and, for that matter, proposals for federal pro-abortion laws). And the considerations on the other side, notably the human rights of unborn children, are very weighty.
I’ll finish by returning to the issue of consistency and rhetoric. Nearly everyone now accepts that following the Reconstruction Amendments, the federal government has an important role in protecting basic rights — even though there are important disagreements about the scope of those rights and of the permissible federal actions. That was the point of the comment in the editorial — about the federal government’s “undoubted” role in protecting civil rights — that so exercised my colleagues. The pro-life movement has as a loudly advertised bedrock conviction that abortion is a denial of basic human rights, with many calling it the civil-rights issue of our time. It would be decidedly odd if pro-lifers believed the right to life of unborn children to be fundamental, believed that the federal government should protect rights, and yet balked at a federal role in fighting this massive rights violation. Especially without any good grounds for rejecting that role.