Perspectives: National abortion ban may be unconstitutional

“[T]he citizens of each state (have) that authority” to regulate or prohibit abortion.

Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2023) (emphasis supplied)

As the Republican presidential candidates, or at least some of them, prepare for the first televised debate next Wednesday, August 23, the issue of abortion is likely to be on the agenda, highlighted by a recent request by former Vice President Mike Pence to all of his Republican presidential contenders to join him in advocating a 15-week national abortion ban.

Pence’s invitation, parallel to a proposal by South Carolina Sen. Lindsey Graham, was made at the Faith and Freedom Coalition Conference in Washington, D.C., this summer. Pence’s imploration went much further and was more pointed than the tepid advocacy for the federal government to play an unspecified “vital role” in abortion asserted by the event’s keynote speaker, his former boss, ex-President Donald Trump, who had luxuriated in watching Pence nearly get killed 2½ years ago by the Jan. 6 lynch mob he launched and gleefully watched ransack the Capitol. But the former president, true to form, has since gotten back in his game and proudly taken ownership of the rollback of abortion rights by the Supreme Court last year, anchored by his three right-wing appointees.

Other GOP candidates are all over the map, some in uncharted territory and others not even on it at all regarding the issue. They range from runner-up in the polls Florida Gov. Ron DeSantis, who shies away from a national ban because only “states have the authority” to address the issue, to Graham’s fellow South Carolina Sen. Tim Scott, the upbeat campaigner who takes no fixed position but says he would sign “the most restrictive bill” that Congress forwards to him, including presumably a very broad ban even more extreme than the Pence-Graham proposition if Republicans have control of both legislative chambers.

Ironically, the ex-president, who is most responsible for the Dobbs decision and the consequential conundrum current candidates confront, was, until recently, among the least supportive of it among the leading contenders for the nomination until his characteristic about-face on the issue.

He also has vacillated on whether he will show up for the debate. (Perspectives prediction: He won’t.)

Inconsistent insistence

Regardless of the debate, a growing number of observers have warned that the restrictive abortion insistence by top-tier GOP candidates could be politically unwise in the general election, and may be illogical and inconsistent with their own purported logic, a juxtaposition that rarely stands in the way of their rhetoric.

If a fetus is considered a “person” and abortion is equivalent to murder, as claimed by Pence, nearly all of his GOP rivals, and a sizeable segment of his party members, then it defies logic — and law — to permit the procedure prior to the midway point of pregnancy or nearly any other time, for that matter.

As reflected in recent polling and confirmed by electoral results in Ohio last week, following other post-Dobbs ones in California, Kansas, Kentucky, Michigan, Montana, and Wisconsin, among other places, it’s a proposition that repels the majority of the electorate outside of hard-core Republicans.

Above all, federal legislation concerning the issue of abortion, as posed by the Supreme Court in Dobbs v. Jackson Women’s Health Organization last year, 142 S. Ct. 2228 (2023) may be of dubious constitutionality. The majority opinion in that case treated abortion as quintessentially a matter left to the states. Referencing “the citizens of each state,” the majority opinion authored by Justice Samuel Alito concludes by extolling its determination to “return that authority” over abortion “to the people and their elected representatives,” a states’ rights rationale if ever there was one, under the reserved powers doctrine of the 10th Amendment.

The Minnesota Legislature took up that invitation in exercising its “authority” by removing reproductive rights restrictions that had sprouted up here in the years since the landmark 1995 ruling by the state Supreme Court in Doe v. Gomez, 542 N.W.2d 17 (Minn. 1995), recognizing a “fundamental” right to abortion under various provisions of the Minnesota Constitution. The upshot has been a 20% increase in the number of abortions in this state since Dobbs, many of them for out-of-state women fleeing the red state restrictions where they reside.

Minnesota is hardly alone. Dobbs unleashed state courts in both red and blue states to exercise their authority over reproductive rights matters, as documented in this publication last week. “State courts flex power over laws regulating abortion,” Minnesota Lawyer, Aug. 10, 2023, p. 4.

If the Dobbs rationale is to be followed, then absent a constitutional amendment, the federal government lacks the power to legislate in a matter outside of its expressed or even implied constitutional authority, dashing the aspirations of those GOP presidential candidates poised for their upcoming debate.

The high court has occasionally struck down federal statutes that infringe on issues reserved to the states under the broad clause of the 10th Amendment reserving unenumerated rights to them and outside the purview of the interstate commerce clause grant of regulatory authority to the federal government. These include its ruling 28 years ago in U.S. v. Lopez, 514 U. S. 549 (1995) invalidating a congressional enactment forbidding possession of firearms near schools, a measure that the justices deemed not within federal authority, or tossing aside portions of the Federal Violence Against Women’s Act five years later in U.S. v. Morrison, 529 U. S. 598 (2000), on similar grounds of lack of constitutional authorization to affect those matters traditionally of local and state laws. But Heart of Atlanta Motel v. United States, 379 U. S. 241 (1964) took a different, more expansive view of federal authority upholding the public accommodations provision of the federal Civil Rights Act on grounds of congressional authority over interstate commerce.

Much the same rationale of the restrictive rulings could be said of the GOP’s 15-week proposal, especially in light of the court’s ruling, reasoning, and rhetoric in the Dobbs case.

Same shortcoming

But abortion rights advocates ought to be careful about clinging to this position that a federal ban would be unconstitutional in opposition to the Pence invitation to join his bandwagon for a nationwide abortion proscription. If it is, then the converse — federal codification of reproductive rights sought by many Democrats — might falter like the pre-Dobbs legislation passed last year when the Democrats controlled the House of Representatives but fell short of the super-majority required in the Senate. If enacted in a future congressional session, it could fall prey to the same shortcoming and, were it enacted, might not have a prayer if challenged before the current composition of the high court on grounds that abortion is a “state’s rights” issue.

The only way around that, in light of the improbability of an explicit constitutional amendment, be an expansive interpretation of existing constitutional provisions, as it did some five decades ago in Roe v. Wade, 410 U.S. 13 (1973). 

Been there, done that, but unlikely to occur under the auspices of the current composition of the right-wing majority of the high court.

Otherwise, it could take a new case, before a differently composed Supreme Court, challenging the Dobbs precedent. It could use Justice Alito’s phrase in that case, “egregiously wrong,” and try to restore the Roe ruling, perhaps with expanded reasoning, to its rightful place in the hierarchy of constitutional rights. That may take a generation or longer in the absence of adding new members to the current tribunal, a court-packing proposition being advanced by many Democrats.

President Biden is not one of them. He recoils from that prospect because he fears it may “politicize” the court, leading some to wonder where he has been lately. That train, many feel, left the station long ago, and the current right-wing justices that make up the majority of that body are not about to slow it down as it careens like a wrecking ball through years of legal precedent.

The principle of precedent, as the current court teaches, is to be viewed skeptically, valued minimally, and hardly venerated when it stands in the way of a pre-ordained determination. It may be time, some surmise, to unpack that predilection, and it make take packing the court to accomplish it.

PERSPECTIVES POINTERS

Some abortion figures

• Minnesota abortions, 2021: 9,129
• Minnesota abortions, 2022: 10,166
• Total U.S. abortions, 1973: 744,000
• Total U.S. abortions, 1990: 1.6 million (record high)
• Total U.S. abortions, 2020: 930,160

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick. The opinions expressed are his own.

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