Alexandra writes:
Senator Lindsey Graham (R., S.C.) has just introduced a bill that would protect unborn children from abortion after 15 weeks of pregnancy. In recent months, polls have found that either a majority or plurality of Americans supports such legislation.
The response from abortion supporters to the bill has been . . . predictable. There’s a substantial cohort claiming the bill proves that pro-life opposition to Roe v. Wade was “never about states’ rights,” as though support for a federal pro-life law somehow negates the constitutional argument against Roe.
I agree with Alexandra that “support for a federal pro-life law” does not “somehow negate the constitutional argument against Roe.” But it does weaken the broader originalist argument upon which the objections to Roe were built. Obviously, Chris Hayes can’t make useful legal arguments about Roe — or anything else, for that matter — because, as a “living constitutionalist,” he doesn’t believe the Constitution means anything discernible in the first place. But conservatives can — and they should.
The winning — and correct — argument against Roe was not that the Constitution prohibits abortion, but that the Constitution is silent about abortion, and that, because the Constitution is silent about abortion, the judiciary is prohibited from setting abortion policy. As our readers will know, I have strong views on abortion, and I have done since I was a child. But my views cannot, and should not, be confused for the original public meaning of the unamended Constitution or of the 14th Amendment — both of which, as the majority confirmed in Dobbs, leave the matter to “the people and their elected representatives.”
Alexandra notes that “polls have found that either a majority or plurality of Americans supports” federal legislation that “would protect unborn children from abortion after 15 weeks of pregnancy.” And I daresay that’s true. But that’s not the end of the story, is it? At least, it’s not the end of the story if we apply the same constitutional approach to the powers that are enjoyed by the federal government as we did to the question of abortion per se. And, if we do that, we easily find that the federal government has no constitutional power to regulate abortion. Hell, even if we stretch the commerce clause beyond its original meaning — which, as Dobbsian originalists, we should not — we still can’t find such a power, because the prohibition of abortion is not a commerce power, but a police power of the sort that the Constitution’s enumerated powers doctrine explicitly reserves to the states. (In Gonzales v. Carhart, Justice Thomas noted that the question of “whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court,” and could therefore be waived for now).
So, no, Lindsey Graham’s bill doesn’t undermine Dobbs, but it does diminish the integrity of the originalist philosophy that underpinned and justified the constitutional argument for Dobbs — and, if that philosophy is to remain intact, that matters.