House Republicans Set To Sacrifice Limited Government On The Altar Of Abortion Politics
House Republicans are set to vote on a bill banning abortion in almost all cases after twenty weeks. What they can't do is explain where the Constitution gives Congress the power to do this.
Earlier this year, Republicans in the House dropped at the last minute what would have been a vote on a bill that would ban virtually all abortions nationwide after the 20th week of pregnancy, something which Republicans had promised to do since before the 2014 elections. Ostensibly, the bill was dropped because of disputes inside the House GOP Caucus raised mostly by Republican women who were concerned that the restrictive language of the bill went too far and would harm the party’s image with young and female voters. Not surprisingly, many prominent conservatives were upset with the move, which they saw as a setback on the eve of the annual march to mark the anniversary of the Supreme Court’s decision in Roe v. Wade. Four months later, The Weekly Standard reports that the House is set go vote on a new version of the bill this week:
The House of Representatives will vote on a bill next week that would ban nearly all late-term abortions, House majority leader Kevin McCarthy tells THE WEEKLY STANDARD. The legislation would establish a national limit on abortion at 20 weeks after conception—five months into pregnancy—which is the gestational age at which infants can of feel pain and survive long-term if born prematurely.
“Life is precious and we must do everything we can to fight for it and protect it,” said McCarthy, a California Republican. “Our commitment for the House to consider this important legislation has been steadfast and I am proud of the work of our members to prepare this bill for House consideration next week.”
In 2013, the House passed the bill, called the “Pain Capable Unborn Child Protection Act,” which included exceptions in the cases of rape, incest, and when a physical health issue endangers the life of the mother. But an effort to pass identical legislation in the new Congress was scrapped in January on the eve of the annual March for Life because some GOP members, led publicly by Rep. Renee Ellmers of North Carolina, objected to the bill’s reporting requirement for late-term abortions in the case of rape. The bill required the crime to be reported to law enforcement officials at any point prior to performing a late-term abortion.
According to House Republicans, that requirement has been removed from the bill. Instead, the legislation requires abortion doctors to ensure that victims have received either medical treatment or licensed counseling at least 48 hours prior to the late-term procedure. With that change, the bill has assuaged the concerns of those Republican members while still garnering strong support of national pro-life groups, including the National Right to Life Committee and the Susan B. Anthony List.
“I’m proud we’ve gotten to a point where we found a consensus between our members and the pro-life groups out there,” said Rep. Diane Black of Tennessee.
“We will have even stronger support than we did in the last Congress,” said Rep. Chris Smith of New Jersey, a leading pro-life advocate in the House. “It will be good to have a truly unified pro-life conference.”
Even without the setback in Congress, the forces behind this ban have been having a great deal of success at the state level, although it’s presently unclear whether any of those state-law bans will survive the inevitable court challenges. On the Federal level, though, Glenn Reynolds notes in his column at USA Today that the House GOP’s push for this legislation is revealing some rather obvious contradictions between their “pro-life” principles and their commitment to limited government and the Constitution:
The problem is that Congress is supposed to exercise only the powers enumerated in the Constitution, and those powers don’t include regulating state medical procedures. (The federal government lacks even the power to criminalize murder as such: All federal “murder” statutes punish murdering someone in the course of violating some other federal law because unlike states, the federal government has no general “police power.”)
If you scroll through the powers enumerated to Congress in Article I, Section 8 of the Constitution, you’ll find such things as establishing uniform rules of bankruptcy, raising and supporting armies and navies, and establishing post offices and post roads. What you won’t find is anything that supports congressional power to impose a time limit on abortion.
The standard end run around this is to invoke the Commerce Clause, that is, Congress’ power to regulate commerce “among the several states.” But the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power, so the party of small government ought to be reluctant to do so. Some might labor under the misapprehension that the Supreme Court has already upheld Congress’ power to regulate abortion under the Commerce Clause. In fact, inGonzales v. Carhart, as Justice Clarence Thomas noted, that question was not addressed by either the Supreme Court or any lower court.
[M]embers of Congress take their own oath to preserve the Constitution, which imposes an independent obligation on them to take the Constitution seriously, not just to do whatever the Supreme Court will let them get away with. If, as Republicans in Congress keep telling us, they support limited government, then they need to support limits on government even when those limits stand in the way of doing something they want to do.
Leaving aside the debate on the specific issue of whether most abortions should be banned at twenty weeks, or whatever hard deadline one might wish to impose, it strikes me that Reynolds get the real problem with what House Republicans are proposing to do here basically right. Whatever one might say about the legality or propriety of a state law ban on abortion at twenty weeks, when the matter is put forward Congress rather than a state legislature then the proponents of the bill must explain exactly where in the Constitution Congress is granted the power to do what it proposes to do here. As Reynolds notes, the advocates of the bill will take the position that the Commerce Clause grants them all the authority that they need here. Given the extent to which the Courts have expanded the reach of the Commerce Clause well become its intended meaning, it’s entirely possible that a future Supreme Court would agree with that position. For example, in 2003 Congress passed a law banning so-called “partial birth” abortions nationwide. When the lawsuit challenging that law made it to the Supreme Court in the form of a case called Gonzalez v. Carhart, which Reynolds mentions above. In that case the Court upheld the law by a 5-4 vote, with only Justice Thomas and Justice Scalia raising in a concurring opinion the question of whether Congress actually had the authority under the Constitution to ban abortion of any kind. However, the issue of Congressional authority was not a central part of the majority opinion and, thus, this issue remains for a future case.
At its core, Reyonlds is correct to point out that there is a rather obvious contradiction between the limited government principles that Republicans claim to stand for, along with their insistence that they stand opposed to the expansive views of Federal power under the Commerce Clause that they are now relying on, and their support for a bill such as this. If nothing else, it makes clear that their support for limited government and all that flowery rhetoric that we hear from Republicans on a regular basis about the Constitution is by and large nonsense. Three years ago, Republicans were telling us that the Commerce Clause did not give Congress the power to require everyone to have medical insurance. Now, they are telling us that it does give them the power to ban a medical procedure nationwide. The hypocrisy is really quite apparent and, if nothing else, it shows that when it comes down to a choice between abiding by their principles and pandering to their base, Republicans have made their choice.
Realistically, of course, this bill is not likely to ever become law. It will likely pass the House, of course, unless it gets withdrawn at the last minute like it did in January. After that, though, it’s fate seems to be predetermined. Senate Democrats are likely to do whatever they can to block consideration of this bill when it makes its way to the upper chamber through the filibuster and other means. Even if the bill did pass the Senate, President Obama would veto it and there would not be sufficient votes in either the House or the Senate to override the veto. To a large extent, then, this is a purely symbolic exercise by the House Republicans designed more to fulfill a campaign promise to the pro-life movement than anything else. Nonetheless, it is a fairly stark example of where the GOP’s priorities are.