Tomorrow the Senate Judiciary Committee will hold a hearing on the proposed “Woman’s Health Protection Act.” In short, the Act purports to ban a number of state-imposed restrictions on abortion, including waiting periods, pre-abortion sonograms, regulations on clinics, requirements for admitting privileges, and many others. You can read the text of the proposed bill here.
The findings of the bill cite Congress’s power under Section 5 of the 14th Amendment, and the commerce clause, as the constitutional basis for this law:
(8) The cumulative effect of these numerous restrictions has been widely varying access to abortion services such that a woman’s ability to exercise her constitutional rights is dependent on the State in which she lives. Federal legislation putting a stop to harmful restrictions throughout the United States is necessary to ensure that women in all States have access to safe abortion services, an essential constitutional right repeatedly affirmed by the United States Supreme Court.
(9) Congress has the authority to protect women’s ability to access abortion services pursuant to its powers under the Commerce Clause and its powers under section 5 of the Fourteenth Amendment to the Constitution to enforce the provisions of section 1 of the Fourteenth Amendment.
Is this constitutional? Let’s focus on Section 5 first. The argument would go something like this. The right to an abortion is a fundamental right protected by the Due Process Clause in Section 1 of the 14th Amendment. Thus, Congress has the power to make sure states are not violating those rights through section five.
But this position raises significant Boerne v. Flores problems. Congress is attempting to flesh out the scope of the right to access an abortion, as defined by the 14th Amendment. The Court in Boerne (joined by Justices Stevens and Ginsburg, even if she regrets that vote), held that it is for the Court, and not Congress to define the liberties protected by the 14th Amendment.
The bill bans prohibitions prior to fetal viability. This would seem to conflict with the standard articulated in Casey:
A prohibition or ban on abortion prior to fetal viability. …
A measure or action that prohibits or restricts a woman from obtaining an abortion prior to fetal viability based on her reasons or perceived reasons or that requires a woman to state her reasons before obtaining an abortion prior to fetal viability.
The bill offers a more restrictive standard than the Court has considered in Casey on waiting periods:
(3) A restriction that limits a pregnant woman’s ability to obtain an immediate abortion when a health care professional believes, based on her or his good-faith medical judgment, that delay would pose a risk to the woman’s health.
Is this wide-ranging bill in any way congruent and proportional to the constitutional rights at issue? If RFRA wasn’t, this probably isn’t.
Second, with respect to its powers under the commerce clause, I’ll quote Justice Thomas’s concurring opinion in Gonzales v. Carhart:
I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
Does abortion have a sufficient nexus with interstate commerce to justify such a wide-ranging ban that imposes on federalism, and the ability of the states to regulate the health and safety of the clinics? Oddly enough, the word “commerce” appears only once. They didn’t even bother to add a decent Lopez commerce jurisdictional hook in the statute.
Beyond the commerce clause, let’s think about the necessary and proper clause the last, best hope of ultra vires congressional action (to quote Justice Scalia). This bill amounts to an unprecedented intrusion on the ability of states to enact health and safety regulations. It specifically limits what regulations a state can impose:
The following restrictions on the performance of abortion are unlawful and shall not be imposed or applied by any government:
Historically, these types of regulations have been solely within the provence of the state police power. Would this amount to a “great and substantive independent power” denied to Congress, when it comes to preserving federalism and states rights?
This bill is likely unconstitutional on all fronts.