Kamala Harris Wants To Use Federal Authority To Monitor State Abortion Laws

Kamala Harris is trying to jump-start her Presidential campaign with an idea for a new law, but it's probably unconstitutional and would never get through Congress.

Senator Kamala Harris is seeking to put some energy in her campaign by promising that if she is elected President she would advocate a law that would require states to get permission from the Federal Government before passing any law impacting the right to an abortion:

Senator Kamala Harris of California unveiled a plan on Tuesday that would require states and localities with a history of unconstitutionally restricting abortion rights to obtain federal approval before such laws can take effect.

Ms. Harris, who is seeking the Democratic nomination for president, called for what is known as a “preclearance requirement” in the plan, released as numerous states have passed laws to sharply limit abortions.

“When we look at a law like what’s happening in Alabama and they’re saying they’re going to sentence a doctor to 99 years, as a prosecutor, let me tell you, I got a real problem with that,” Ms. Harris said on MSNBC on Tuesday night, referring to an Alabama law intended to ban most abortions in the state.

“We cannot tolerate a perspective that is about going backward and not understanding women have agency, women have value, women have authority to make decisions about their own lives and their own bodies,” she said.

The requirement would apply to jurisdictions with a history of violating Roe v. Wade, the Supreme Court’s landmark decision in 1973 that established the constitutional right to abortion. These jurisdictions would have to clear new abortion laws with the Justice Department before putting them into effect.

Ms. Harris is one of several Democrats in the 2020 race who have sharply criticized laws passed in AlabamaMissouri and other states that severely restrict abortion. She is also one of several Senate co-sponsors of the Women’s Health Protection Act, which would prevent any government entity from imposing various restrictions on abortion services.

Though some Democratic presidential candidates have already called on Congress to codify abortion rights, Ms. Harris’s campaign said her proposal went further by shifting the burden to states with a history of flouting Roe; the campaign cited South CarolinaIowa and Georgia as examples.

(…)

The Harris campaign said any change to abortion laws in a covered jurisdiction would remain legally unenforceable until the Justice Department determined that it adhered to the standards laid out in Roe and by the Women’s Health Protection Act, which remains stalled in the Republican-controlled Senate.

Ms. Harris’s campaign also said a number of guardrails would be put in place to protect the preclearance requirement regardless of a particular administration’s view of abortion.

“With reproductive freedom under attack nationwide, we’re heartened to see Senator Kamala Harris rolling out a bold plan to defend our fundamental rights,” said Sasha Bruce, senior vice president at NARAL Pro-Choice America, an advocacy organization.

“Every candidate in this field should know it’s not enough to simply call yourself pro-choice,” Ms. Bruce said. “All candidates need to back up their words with a concrete plan for action, especially given the tenuous thread by which reproductive freedom hangs.”

As a campaign rallying cry, it’s easy to see why Harris would latch onto an idea like this. With the confirmation of Justices Neil Gorsuch and Brett Kavanaugh, concern has increased that the Supreme Court’s precedents in Roe v. Wade and Planned Parenthood v Casey. and reaffirmed in Whole Women’s Health v. Hellerstadt et al, are under a threat unlike one they have faced before. This has been emphasized more recently with the passage of highly restrictive laws in jurisdictions such as Alabama, Louisiana, Mississippi, Missouri, Ohio, and Georgia that are clearly intended to be a challenge to the Roe/Casey precedents. The idea of passing a Federal law that would make it harder for states to restrict the right to an abortion even if Roe and Casey are overruled is one that would obviously appeal to Democratic voters. The problem for Harris is that this idea of hers faces two problems, one practical and the other legal.

On the practical side, there is the simple fact that this is not something that Harris or any other Democratic President could implement on their own. As even she acknowledges that it would take Congressional authorization to accomplish this. Getting a proposal like this through the House would obviously require Democrats to maintain control of the House. Assuming that happens, though, it’s rather obvious that this matter will die in the Senate. That outcome is obviously certain if Republicans maintain control of the Senate after the 2020 elections, with the likelihood being that Senate Majority Leader Mitch McConnell would not even bring the matter up for consideration. Even if the GOP loses control of the Senate next year, though, the odds of legislation like this making its way to the hypothetical desk of a hypothetical President Kamala Harris are basically zero. Such a measure would need to get past the legislative filibuster, meaning it would need to get 60 votes in a Cloture Moton. Absent the unlikely possibility that Democrats somehow get a filibuster-proof majority in the Senate, that isn’t going to happen.

Assuming for a second that the law somehow manages to get past the Senate and signed into law, it does not appear to me that there is a sufficient legal basis to support the constitutionality of Harris’s proposal. The idea obviously is modeled after the Voting Rights Act and its provision regarding the requirements of certain jurisdictions to obtain permission from the Justice Department before making changes to their voting laws that would impact minorities. Leaving aside for a second the fact that this pre-clearance provision was struck down by the Supreme Court several years ago due to the fact that the list of jurisdictions requiring pre-clearance had not changed since 1965, it’s clear that there’s a difference between the VRA and Harris’s proposal.

The Voting Rights Act is clearly justified by the authority granted to Congress to enforce the provisions of the 15th Amendment, which extended the right to vote to African-Americans and other racial minorities. Outside of the Supreme Court’s ruling in Roe and Casey, there is no similar provision of the Constitution granting Congress the same authority with respect to the right to abortion. If those cases are overruled or limited in some way, then any authority that did exist would no longer exist, and it’s not at all clear that those decisions by themselves can form the sufficient basis for the kind of wide-ranging law that Harris is proposing. In any case, if something like this did become law it would immediately be challenged in court and there’s a good chance it would not pass Constitutional muster.

As I said, this may work as a rallying cry for Harris’s campaign. As a workable idea, it leaves much to be desired.

FILED UNDER: Gender Issues, Law and the Courts, Politicians, U.S. Constitution, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. SKI says:

    Even if the GOP loses control of the Senate next year, though, the odds of legislation like this making its way to the hypothetical desk of a hypothetical President Kamala Harris are basically zero. Such a measure would need to get past the legislative filibuster, meaning it would need to get 60 votes in a Cloture Moton. Absent the unlikely possibility that Democrats somehow get a filibuster-proof majority in the Senate, that isn’t going to happen.

    If you think the filibuster is going to remain after Dems take back the Senate, you haven’t been paying attention.

    The Voting Rights Act is clearly justified by the authority granted to Congress to enforce the provisions of the 15th Amendment, which extended the right to vote to African-Americans and other racial minorities. Outside of the Supreme Court’s ruling in Roe and Casey, there is no similar provision of the Constitution granting Congress the same authority with respect to the right to abortion. If those cases are overruled or limited in some way, then any authority that did exist would no longer exist, and it’s not at all clear that those decisions by themselves can form the sufficient basis for the kind of wide-ranging law that Harris is proposing. In any case, if something like this did become law it would immediately be challenged in court and there’s a good chance it would not pass Constitutional muster.

    With all due respect, this is ridiculous. Reproductive rights are health care. The federal government pays for a majority of health care in this country. They absolutely can regulate what is allowed (getting rid of the Hyde Amendment is going to be part and parcel of this as well). Federal preemption in the area of healthcare regulation is long established.

    6
    1
  2. @SKI:

    If you think the filibuster is going to remain after Dems take back the Senate, you haven’t been paying attention.

    First, this would require the Democrats to take back the Senate. That is by no means guaranteed.

    Second, it would require a majority of Democrats to support a move to repeal the filibuster. This is by no means certain. In the past several Senators — including Dianne Feinstein, Patrick Leahy, and Joe Manchin among them — have said they would not support a move to elminate the legislative filibuster. It also is by no means clear that hypothetic Majority Leader Chuck Schumer would support such a move.

    Reproductive rights are health care. The federal government pays for a majority of health care in this country

    IMO, this is not a sufficient legal basis upon which to base the kind of law Harris proposes, especially if Roe is overruled (and the law would be unnecessary if Roe is not repealed.)

    Much like Bernie Sanders and his “free college for everyone” thing, this is a campaign stunt that would never pass muster in Congress (or the courts.}

  3. SKI says:

    First, this would require the Democrats to take back the Senate. That is by no means guaranteed.

    True but irrelevant.

    Second, it would require a majority of Democrats to support a move to repeal the filibuster. This is by no means certain. In the past several Senators — including Dianne Feinstein, Patrick Leahy, and Joe Manchin among them — have said they would not support a move to elminate the legislative filibuster. It also is by no means clear that hypothetic Majority Leader Chuck Schumer would support such a move.

    Let’s just say that I’ll be shocked if they don’t come around to doing so given the level of GOP obstructionism and bad faith. They will need to to grant statehood to PR and DC. 🙂

    IMO, this is not a sufficient legal basis upon which to base the kind of law Harris proposes, especially if Roe is overruled (and the law would be unnecessary if Roe is not repealed.)

    Wrong. It is incredibly necessary NOW – even without Roe being reversed. The anti-choice zealots have already thrown up road-blocks that prevent individuals from bodily autonomy and health care choice. There is a reason that multiple states only have a single provider left – and it isn’t the free market. It is bad faith zealotry.

    Much like Bernie Sanders and his “free college for everyone” thing, this is a campaign stunt that would never pass muster in Congress (or the courts.}

    You keep stating your conclusion but provide no actual facts or analysis. Yes, the Dems would have to take back Congress and the White House which very well may not happen. But your claim is that it is unconstitutional. Why do you say that?

    5
    1
  4. Kathy says:

    Senator Harris won’t be able to pass such a law, as Doug states, without it being part of a law guaranteeing the right to have an abortion. Whether such a law is a good idea remains open to debate.

    As to the filibuster, there are two problems:

    1) Given the highly divisive times and the almost total aversion for compromise, the Senate can’t pass significant new legislation with the filibuster as is.

    2) Given the above also, the filibuster is the last mechanism keeping the party in power from running roughshod over the country.

    So, as the old Far Side cartoon has it, it’s damned if you do, and damned if you don’t, and you have to choose one.

  5. @SKI:

    It is incredibly necessary NOW – even without Roe being reversed.

    Whether it is necessary or not is a policy issue but it is not relevant to the legal question of whether or not such a law would be constitutional. Based on the current legal climate, and even without reaching the question of whether or not Roe will be overturned, I do not believe this proposed law would be well-received at the District Court, Court of Appeals, or Supreme Court level.

  6. SKI says:

    @Doug Mataconis: What is the *legal* argument for why it is unconstitutional? I get that you “don’t think it will be well received” as you keep saying that but how is it “unconstitutional”? Health care clearly isn’t outside the ambit of Congress, so what is the theory? Or do you think that they will say that medical care from a doctor isn’t health care?

    Or are you going full Mitch McConnell cynic and saying facts and law don’t matter – only power does?

  7. @SKI:

    The legal argument is that there is nothing in the Constitution that would authorize Congress to do this. The Voting Rights Act is based in Congressional authority under the 15th Amendment. This proposed law would have no such basis and without a specific grant of authority in the Constitution, it is a power vested in the states.

    1
    3
  8. SKI says:

    @Doug Mataconis: There is no Congressional power to regulate healthcare – healthcare that it is paying for, btw? Say goodbye to the FDA then? PPACA? ERISA?

    You really think SCOTUS wants to open up that Pandora’s Box?

  9. @SKI:

    I didn’t say there’s no Congressional power but to the extent it exists it only exists with respect to matters that involve interstate commerce. Medical licensure does not fall within this category and if you tried to argue that it does you would be laughed out of any court in the country.

  10. @SKI:

    Additionally, even if one could make an argument that the Federal Government would have the authority to regulate medical licensing (which it does not) that is far different from the kind of authority that Harris would purport to grab for the Federal Government with this proposal.

    Of course this is largely an academic exercise given that it presently does not appear as if Kamala Harris will be the Democratic nominee in 2020 or that she’d win if she was. And, in any case, as I said, it’s unlikely that something like this would pass Congress without a filibuster proof Senate, which is not going to happen.

  11. SKI says:

    @Doug Mataconis:

    Additionally, even if one could make an argument that the Federal Government would have the authority to regulate medical licensing (which it does not) that is far different from the kind of authority that Harris would purport to grab for the Federal Government with this proposal.

    Hmmm… This may explain part of our disagreement.

    I don’t see her proposal as regulating medical licensing. It would be to protect Americans’ access to medical care and prevent interference with their right to bodily autonomy. Many of the problematic regulations have nothing to do with licensing but all are designed to prevent pregnant individuals (or non-pregnant individuals who want access to medicine) from exercising their rights to same.

    Of course this is largely an academic exercise given that it presently does not appear as if Kamala Harris will be the Democratic nominee in 2020 or that she’d win if she was. And, in any case, as I said, it’s unlikely that something like this would pass Congress without a filibuster proof Senate, which is not going to happen.

    Again, irrelevant to your contention regarding Constitutionality. You are letting the trend towards punditry overwhelm your analysis as an expert. Very “Inside the Beltway” of you…

  12. KM says:

    @Doug Mataconis:

    I didn’t say there’s no Congressional power but to the extent it exists it only exists with respect to matters that involve interstate commerce. Medical licensure does not fall within this category and if you tried to argue that it does you would be laughed out of any court in the country.

    Ok, but most abortions do not require a licensed doctor to be involved. That’s a GOP invention to limit abortion and bath faith criteria in general. Actual healthcare doesn’t even require a licensed medical personnel – you can get massages for back injuries from a regular masseuse and still get reimbursed, for example. Healthcare =/= doctor just as legal representation =/= lawyer. Yes, it’s common and vastly preferred but still not a requirement.

  13. Scott F. says:

    @Doug Mataconis:

    First, this would require the Democrats to take back the Senate. That is by no means guaranteed.

    Which may be why Kamala Harris stated (in the very same MSNBC town hall in which she proposed this pre-clearance) that the 202o election had to be about not only winning the White House from Trump, but taking the Senate from Republicans.

    ANY Democratic policy proposal being offered by ANY of the Democratic presidential candidates WILL NOT become law as long as Mitch “I don’t honor norms or informal rules” McConnell controls the Senate. Senator Harris’ pre-clearance for abortion restrictions proposal isn’t any more a campaign stunt than anything else being proposed by liberal or moderate candidates alike. This policy proposal is not any more fanciful than any of the dozens of bills the Democratic House has passed since they took control in January which McConnell refuses to advance.

  14. gVOR08 says:

    I don’t disagree with Doug, but this is campaign posturing, not legislation. And I fail to see the point, or fairness, of holding D’s campaign rhetoric to scrupulous standards when Rs have none.

  15. @SKI:

    and

    @KM:

    The medical licensure issue is not relevant to this discussion at all. The point is that there is nothing in the Constitution that authorizes the kind of law that Harris is proposing here, which is basically an “abortion rights” version of the Voting Rights Act. The VRA is authorized because of Congressional authority to enforce the 15th Amendment. There would be no similar Constitutional authorty granted to Congress with respect to abortion rights. The only thing that makes abortion a federal issue at the moment is the Supreme Court’s decisions in Roe and Casey, but those cases aren’t a sufficient basis on which to rest a statute that would seek to nullify state law in an area otherwise reserved to the states pursuant to the 10th Amendment.

    I support the right to choose. I would vehemently oppose this if it were proposed in Congress because I do not believe Congress has the authority to pass such a law.

  16. @gVOR08:

    this is campaign posturing, not legislation

    This is obviously true. Harris is looking for something to revive a campaign that is getting overshadowed by the likes of Buttigieg and Warren.

  17. @Scott F.:

    Which may be why Kamala Harris stated (in the very same MSNBC town hall in which she proposed this pre-clearance) that the 202o election had to be about not only winning the White House from Trump, but taking the Senate from Republicans.

    Even if Democrats get the Senate back in 2020, which is a pretty big “if” in my opinion, their majority would most likely be something like 51-49 or 52-48. That’s pretty far from the 60-40 (at least) they’d need to override the legislative filibuster that we’d inevitably see from Republicans.

  18. Scott F. says:

    @Doug Mataconis:

    I agree 60 votes is beyond imagining. A Democratic Majority Leader would at least get liberal policy bills onto the floor for public debate and potentially negotiated common ground. McConnell is currently relegating all House passed bills into a black hole.

    I’d assume ALL Democratic policy will see legislative filibuster from the Republicans on even the most moderate policy for the foreseeable future. (The Republicans will be just that bad as sore losers.) That’s why Senator Warren keeps talking about what she could do with executive order alone and why Senator Harris is smart to talk about Justice Department directives on abortion versus codifying Roe vs. Wade. There will be court challenges on those executive orders that will advance the debate. That outcome would still be better than the status quo with Republicans holding the Senate.

  19. @Scott F.:

    And what would be the Constitutional or legal basis for Executive Orders related to abortion rights?

    I get that Democrats want to keep this issue front and center for 2020 but proposing silly ideas that will never be implemented doesn’t strike mes as the best way to do that.

  20. grumpy realist says:

    …sometimes I think we should start instituting fines for politicians who suggest legislation that is on the face unconstitutional….

    3
    3
  21. Gustopher says:

    @Doug Mataconis: How much federal funding goes to medical care, which is then administered by the states?

    I think that we could go the same route with this as we have gone with tying drinking age to highway funding.

    It might be cruel and sadistic to cut these funds, but other than horrific human suffering, what’s the worst that could happen?

    We could also move the CDC headquarters, and other major government employers out of states where the rights of female employees are not being protected.

  22. An Interested Party says:

    I get that Democrats want to keep this issue front and center for 2020 but proposing silly ideas that will never be implemented doesn’t strike me as the best way to do that.

    No offense, but that is funny coming from a libertarian…

    5
    1
  23. Scott F. says:

    @Doug Mataconis:
    IANAL, but I don’t believe Senator Harris is proposing Executive Orders that would impact abortion rights and neither am I. She is proposing “pre-clearance” for state legislative actions that may run against currently established federal abortion rights and which may be unconstitutional themselves related to abortion rights.

    From the article you cite:

    The requirement would apply to jurisdictions with a history of violating Roe v. Wade, the Supreme Court’s landmark decision in 1973 that established the constitutional right to abortion. These jurisdictions would have to clear new abortion laws with the Justice Department before putting them into effect.

    There is precedent for pre-clearance of state laws from state legislatures with troubled histories in the Voting Rights Act. SCOTUS overturned that section of the Voting Rights Act in 2013, but based on the argument that the current condition of votings rights warranted a new formula. I would argue (as a Harris administration could) that the logic used as the basis for Shelby County… has proven to be faulty by the many states that HAVE moved to restrict voting rights since that decision was made. It could also be argued that the current condition is that abortion rights are under threat as demonstrated by recent legislation out of Alabama, Missouri, etc. so the Voting Rights formula for pre-clearance is justified.

    I’m not saying that Senator Harris’ proposal would survive through the courts, but I am pushing back against the idea that her proposal is either silly or hollow campaign posturing. She’s smarter than that and she doesn’t deserve such blanket dismissal.

  24. Scott F. says:

    @grumpy realist: …we should start those fines with state legislatures first if Alabama and Missouri are any indication of where the trouble lies.

  25. JohnMcC says:

    @Doug Mataconis: You say “…there is nothing in the Constitution that authorizes that kind of law….”

    Just like there is nothing in the Constitution that authorizes a secret ballot.

    During the pre-Roosevelt Great Depression, it was general conservative thought that nothing in the Constitution that allowed the Federal Gov’t to aid individuals who were starving. They got around that by shipping grain — and saying it was for livestock.

    We are pretty far from that level of thinking about the Constitution. Or are we?

  26. @Scott F.:

    I addressed the VRA issue in the post. The VRA is authorized by Congressional authority to enforce the 15th Amendment. What provision of the Constitution, exactly, authorizes Harris’s proposal for what amounts to an “Abortion Rights Act.”

  27. @An Interested Party:

    I have long recognized political reality when it comes to actually getting ideas I favor implemented. Senator Harris doesn’t appear to do so.

  28. @JohnMcC:

    there is nothing in the Constitution that authorizes a secret ballot.

    Because the Constitution reserves to the states, not the Federal Government, the power to regulate the “time, place, and manner” of elections. The question you ask is a question of state law, not Federal law.