Can Congress protect abortion rights? Yes, here’s how.
Kevin Drum raises the question:
In the aftermath of the Dobbs decision, some conservatives are talking about passing a national ban on abortion. But I don’t think they can do that.
Drum goes on to explain that the federal government is a government of enumerated powers, and that it is not obvious that any of the recognized powers of Congress would allow it to ban abortion nationwide. He recognizes that the Court could make up a new doctrine and uphold a national ban, but thinks that would be a bridge too far:
. . . Still, there are limits, even for these folks. They just signed onto a huge decision that, in every possible way, supports the idea that abortion is strictly a state issue, not a federal one. They’d have a hard time changing that any time soon.
Then he adds this:
Unfortunately, this same reasoning applies to any attempt to “codify Roe.” Maybe I’m wrong, but I don’t think Congress can do this either. And if they did, the Supreme Court would obviously have no problem striking it down since that would be consistent with the text of Dobbs.
So, what does this mean for my proposal for a bipartisan federal settlement on abortion rights? (My proposal is for a 15-week minimum period of abortion as of right; after 15 weeks abortion would be allowed when pregnancies go awry. I also propose measures to improve access, especially for low income women.)
I agree that the Court could rule against federal legislation establishing a national right to abortion. It could also uphold such legislation. In both cases, the justices could do this while maintaining the pretense that they were just “calling balls and strikes”, or at least making a good-faith effort to vindicate grand constitutional values using accepted techniques of constitutional interpretation.
This reflects a serious problem with judicial review in the United States: the Supreme Court has way too much discretionary power, which is why the Court has become so politicized. Conservatives recognized that the vague words in the constitution and the open-ended nature of constitutional interpretation conferred great power on the Court, and through a combination of luck, organization, money, and persistence managed to stack the Court with Justices who are all too willing to use the Court’s power to achieve their shared, narrow ideological goals.
None of this means that the power of the Court is unlimited. The Court will get its wings clipped if it acts too imperiously in defiance of public opinion and the legitimately elected branches of government. This is why a settlement on abortion needs to be bipartisan. The most plausible way to secure abortion rights in the next decade is for Democrats to win the fight for public opinion and then work with Republicans on a popular, bipartisan agreement that the Court is scared to oppose. This is the most realistic way to get the Court to back off. If the Democrats happen to win a temporary governing majority and pass a bill codifying Roe without significant Republican support, the Court will not hesitate to strike down the legislation.
I believe SCOTUS did want Congress to codify Abortion. They do not want to decide and then have their decision being used as the law of the land. Thomas has said it. Besides Dobbs, SCOTUS has struck other decisions too. Today, the court decided it is alright for a coach to lead prayer meetings on a public school ground, setting a pretense for state and religion. Something for which other people of religious beliefs fled their home lands to come to America.
One Constitutional attorney’s view on SCOTUS;
“There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court. Its decisions always have been and always will be a product of the identity of those on the bench. For example, from the 1890s until 1936, the court had a very conservative majority and declared unconstitutional over 200 federal, state and local laws protecting workers and consumers. Only once in American history, during the Warren Court, from 1954-1969, and especially from 1962-1969, was there a liberal majority on the high court and its decisions were progressive in a way never otherwise seen in American history.”
If he is right, we are in deep sh*t.
“In Dobbs vs. Jackson Women’s Health Organization, the court overruled a half-century of decisions protecting a constitutional right of women to choose whether to end their pregnancies. The decision must be understood as entirely about the conservative desire to end abortion rights and not about constitutional principles or judicial methodology.”
And the nominees who gave the Republicans the majority?
“These nominees had no compunction about lying during their confirmation hearings and pledging fidelity to precedent, and all have said that Roe is well-established precedent. They knew that once on the bench they could do what they wanted. Everyone knows that if Hillary Clinton had won in 2016 and picked three justices, Roe would have been safe for decades to come.”
This says Democrats do it also with their decisions.
“Justice Samuel Alito’s majority opinion in Dobbs focuses on the need to leave the issue of abortion to the political process. But there was no deference to the political process earlier this week when the conservatives on the court declared unconstitutional a New York law limiting concealed weapons that had been on the books since 1911 or struck down a Maine law that limited financial aid to religious schools. This conservative court defers to the political process when it agrees with its results, as it does with laws prohibiting abortions, but the deference vanishes when the conservative justices dislike the states laws.”
I guess we could hope SCOTUS angers the plebians or general citizenry enough that we can get 60 Senators like when Obama took office and maintain the House. With all that is happening, people are angry,
Still this will not guarantee Congressional action will be allowed to stand.
These 6 Justices which includes Roberts are motivated by carrying out the Republican and a Catholic-belief platform, and not a judicial philosophy or an interpretative methodology. The only question is how far they will go.
I see absolutely zero chance of a bipartisan bill protecting abortion rights. Highly doubtful a single Rep would support it, and Manchin will not vote for a filibuster carve out. Hardly worth the time spent talking about it.
I agree that a bipartisan bill is highly unlikely today. I say I’m talking about over the next decade. And even over the next decade I don’t think that a bipartisan settlement is easy to achieve or even more likely than not. I just don’t see any other path to stable reproductive rights for women. Show me a more realistic path to the goal, and I’m in.
Only one way. Get 50 Dem votes to carve out the filibuster and pass the WHPA. Which also requires a Dem House. That’s the only real option there is .