Questions For “Constitutional Conservatives” Regarding The House’s Abortion Bill

Why did House Republicans vote overwhelmingly for a bill that their own theories would find to be unconstitutional?

constitution-preamble-gavel

Late yesterday afternoon, on an almost complete party-line vote, the House of Representatives passed a bill that purports to ban abortion after the 20th week of pregnancy:

Washington (CNN) - The House of Representatives Tuesday passed a GOP-sponsored bill banning so- called “late term abortions” – procedures for women who are beyond 20 weeks into their pregnancy. The vote was 228-196, mostly along party lines.

The bill’s sponsor, Republican Rep. Trent Franks, R-Arizona, stirred up controversy last week when he opposed an effort by House Democrats to add an exception for women who are raped, arguing that “the incidents of rape resulting in pregnancy are very low.”

House Democrats seized on the comment, and because of the backlash GOP leaders later decided to add new language to the bill allowing women who get pregnant as a result of rape or incest to obtain an abortion if they report the crime to authorities.

The bill is a dead letter in the Senate, of course, and even it if somehow managed to pass that body it would be vetoed by President Obama. Of course, this bill was never actually about voting on a bill that had a chance of passing into law, it’s about appeased the GOP’s Tea Party, religious right base. However, given recent Republican rhetoric on Constitutional issues, this bill does raise some questions.

First of all, under what provision of the Constitution does Congress have the authority to regulate abortion at all?

Interestingly, it appears that they’re using the very same provision that conservatives were complaining about just a year ago during the Supreme Court’s deliberations over the Affordable Care Act:

This bill, titled the “Pain-Capable Unborn Child Protection Act,” unlike the partial-birth abortion ban, has a few relevant “constitutional findings” that articulate the government’s “compelling” governmental interest” and its basis under the commerce clause, as well as (why not) equal protection, due process, and section 5 of the 14th amendment.

(12) It is the purpose of the Congress to assert a compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.

(13) The compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain is intended to be separate from and independent of the compelling governmental interest in protecting the lives of unborn children from the stage of viability, and neither governmental interest is intended to replace the other.

(14) Congress has authority to extend protection to pain-capable unborn children under the Supreme Court’s Commerce Clause precedents and under the Constitution’s grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment.

Yep, that’s right, they’re not only appealing to the Commerce Clause, they’re also appealing to the Supreme Court’s precedents interpreting the Commerce Clause, the very same precedents that, a year ago they were arguing had improperly expanded Congressional power beyond what was intended by the Founders when they placed it in the Constitution. Now, that’s a position that I happen to agree with to a large extent, and indeed the Supreme Court’s opinion upholding the Affordable Care Act rejected the Commerce Clause argument advanced by the proponents of the PPACA and found the law Constitutional under an alternative legal theory. If you actually take the arguments of the critics of the Supreme Court’s Commerce Clause precedents since the 1940s seriously, then it seems clear to me that there is no viable Commerce Clause argument in favor of a general ban on abortions at any stage nationwide. You can only come to that conclusion by relying on the very Supreme Court precedents that “constitutional conservatives” have spent so much energy criticizing. Am I the only one seeing the hypocrisy there?

As for the 14th Amendment argument, there simply isn’t any legal support for the argument that unborn children are covered by the “persons” protected by that Amendment and, if you are an originalist, then it’s fairly obvious that there’s no legal merit to an argument that it does. Indeed, considering unborn children “persons” under the 14th Amendment would establish an immediate conflict between the rights of living adults and unborn “persons” that the authors of the 14th Amendment clearly never intended to create. So, once again, the purported Constitutional justification for the bill is revealed to be made entirely of meritless legal theories.

This leads to our second question, why isn’t a law like this pre-empted by the Tenth Amendment?

Since there is no legitimate power to regulate abortion granted to the Congress under the Constitution, one would think that conservatives, who have complained for years that the Courts have ignored Federalism and allowed more and more power to be accumulated in Washington, would be intensely interested about protecting those “state’s rights” that they talk about so frequently. Indeed, a frequent criticism from the right about the Supreme Court’s decision in Roe v. Wade is that, by finding a Constitutional right to abortion in the general sense, the Court “took the issue away” from the states where it properly belongs. If Roe is overturned, they tell us, all that will happen is that the issue will once again return to the states where, they claim, it properly belongs pursuant to the 10th Amendment. The fact that this means that abortion would be effectively illegal in much of the South and Mountain West is, I suppose, just a happy side benefit for them.

We also saw many appeals to the 10th Amendment during the debate over the Affordable Care Act and other measures that have come out of Washington in the past several years. Some conservative politicians and pundits have advanced ideas ranging from the discredited idea that the states have the authority to “nullify” Federal lawsoutright threats of secession to , not to mention rose-colored views of the Confederacy that seem to forget that it was nation built on the perpetuation of human slavery. States, we are told by people like this, are the true center of American sovereignty, not the national government. And yet here we have nearly every Republican in Congress voting in favor of a bill that purports to regulate something that they’ve said in the past should be left to the states. Where’s the consistency there, guys?

The answer, of course, is that there really wasn’t any concern about Constitutionality among the Republicans who pushed this bill to the floor for a vote. As I noted above, there was never any chance that this bill would get anywhere beyond the House of Representatives, and this was purely an appeal to the GOP base. The Constitution was an afterthought, as apparently is the political impact of  the GOP yet again appearing to be the party that wants to restrict the rights of women. Of course, it does make you wonder how much they actually believe in that Constitution they all seem to carry around in their pockets.

FILED UNDER: Congress, 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 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. Tony W says:

    Why did House Republicans vote overwhelmingly for a bill that their own theories would find to be unconstitutional?

    This question feels rhetorical….the party is well known for their consistent inconsistency.

  2. Mikey says:

    You have to understand most of these guys are not-so-closeted theocrats. The Constitution conflicted with their view of God, and in that conflict God wins every time.

  3. de stijl says:

    The “states’ rights” (grammatically, should it be state’s rights?) argument is almost always bullshit. Whenever employed, this argument is almost never actually about state’s rights – it is about seeing your preferred policy outcome being enacted on the federal level.

    It’s the same with the phrase “constitutional conservative” – let’s enact a radical and/or reactionary right-wing change to US law, but pretend it’s traditional definition of “conservative.”

  4. legion says:

    @Tony W: I don’t mind answering rhetorical questions… Republican politicians are, to a one, gutless, hypocritical liars. Every single one of them.

  5. Dave Schuler says:

    I’m neither a Republican nor a conservative but my suspicion would be that under their hierarchy of values social conservatism is above constitutional conservatism.

  6. gVOR08 says:

    What was the Onion headline a few years ago, “Local Man Vehemently Defends What He Thinks Constitution Says”? If you believe the Founders created the U. S. as a Christian nation, you’re able to rationalize a lot of other things.

    And just FYI, until they discovered they could raise a lot of money on this stuff, Protestant theology for the most part held that life began at birth, and they weren’t concerned about abortion. Hence someone’s comment in the day that, ‘Last year Jerry Falwell couldn’t even spell abortion.’

  7. OzarkHillbilly says:

    Of course, it does make you wonder how much they actually believe in that Constitution they all seem to carry around in their pockets.

    No it doesn’t.

  8. gVOR08 says:

    @de stijl: Conservatives believe in eternal truths and unchangeable principles. And I wish they’d maintain an official living document list somewhere, because I can’t keep up with the changes.

  9. stonetools says:

    Instead of passing obviously unconstitutional bills that are in conflict with their stated principles, they could be doing things like say, passing job bills. But then that would be actually doing the people’s business.

    Reason #45,687 why we need to vote these morons out-all of them.

  10. Mu says:

    Even if they make a decent law, they again have to show they’re doing it for the wrong reasons. Other than a good recipe for chili con carne, is there anything you can’t find in the bible?

  11. de stijl says:

    @gVOR08:

    Conservatives also believe in small, incremental changes to policy lest we throw away that which has made our society traditionally work.

    ; -}

    The definition of the the word “conservative” has a specific background and meaning. There are some who say the the word “conservative” needs to change with the times and be defined as whatever people who are called conservatives believe espouse right now.

    Heck, I was a Linguistics major for two years – I know this argument. And it would be a compelling argument if the people who called themselves conservative actually espoused beliefs that were traditionally conservative in nature and there were not other much more accurate words to use – words like right-wing, or reactionary, or radical.

    If your politics are radical I believe that you have given up the right to call yourself a “conservative.”

    But, then again, I’m a traditionalist who believes in small, incremental change so your mileage may vary.

  12. steve says:

    Why did House Republicans vote overwhelmingly for a bill that their own theories would find to be unconstitutional?

    I’m with Tony W. At this point, it is a rhetorical question, like asking, “Why did House Republicans vote overwhelmingly for a bill that poisons poor children?” or “Why did House Republicans vote overwhelmingly for a bill makes it legal to beat up gays?” That’s just who they are. They are authoritarians, and never let reality intrude in what they Know To Be True.

  13. Woody says:

    @de stijl:

    There are some who say the the word “conservative” needs to change with the times and be defined as whatever people who are called conservatives believe espouse right now.

    Spot on – however, the ultimate goal seems to remain rather classical. An authoritarian state co-commanded by aristocratic Houses and a monopolistic Church.

  14. Sam Malone says:

    Republicans exist to protect the income of rich white men…(as they are a party that consists primarily of rich white men)…and to limit the rights of women.
    Any other discussion about Republicans is largely pointless as it will invariably be outside of their focus.

  15. Rafer Janders says:

    @de stijl:

    If your politics are radical I believe that you have given up the right to call yourself a “conservative.”

    Oh, I disagree. Political conservatism has never been about “conservatism” in the sense of valuing small incremental changes, about conservatism as a synonym for caution and prudence.

    Rather, political conservatism has always been about the protection of the status quo, about championing the interests of the rich and powerful at the expense of the poor and weak. Conservatism is about holding onto power. Today’s Republicans are, therefore, absolutely conservative.

  16. Sam Malone says:

    @ Rafer…
    I think it’s important to separate Conservatism and Republicanism.
    Conservatism has much to offer this country.
    A Conservative party would be for gay rights, for addressing climate change, against austerity in the face of a recession, and would have been against the invasion and occupation of Iraq.
    Unfortunately there are very few Conservatives out there, and the few that remain have been ostracized from the Republican Party.

  17. Sam Malone says:

    A Conservative Party would also have been for a good deal of the provisions in the PPACA…and would have worked to make it better…instead of holding 37 pointless votes aimed at repealing it.

  18. As for the 14th Amendment argument, there simply isn’t any legal support for the argument that unborn children are covered by the “persons” protected by that Amendment and, if you are an originalist, then it’s fairly obvious that there’s no legal merit to an argument that it does. Indeed, considering unborn children “persons” under the 14th Amendment would establish an immediate conflict between the rights of living adults and unborn “persons” that the authors of the 14th Amendment clearly never intended to create. So, once again, the purported Constitutional justification for the bill is revealed to be made entirely of meritless legal theories.

    The funniest thing about citing the 14th Amendment is that conservatives (e.g., Scalia) routinely say that the 14th Amendment doesn’t protect women under the “equal protection of the laws” clause, but they seem to thing that it protects unborn “persons”?

    And they also cite the 14th Amendment’s enforcement clause, how many of the people voting for the anti-abortion bill are the same ones that also routinely complain about the Voting Rights Acts?

  19. al-Ameda says:

    It is now apparent that the portions of the Constitution that Republicans disagree with are Constitutional In Name Only (CINO). They’re on a mission from god to correct that.

  20. wr says:

    The only question that matters is why does a libertarian like Doug keep voting for the party of theocracy, the party that preaches adherence to the constitution while showing absolutely no understanding of it, the party that believes it belongs in every American’s bedroom?

    I mean, is it really because they’ll keep his taxes a tad lower than a Democrat? Is Doug’s price really that low?

  21. wr says:

    Oh, and do hope moron Jenos will come back here and explain how this proves his theory that if the Supreme Court had gone the other way on Roe v Wade, all fights about abortion would remain at the state level, and the Jeebus party would simply have left the rest of the country alone.

  22. george says:

    @Sam Malone:

    Republicans exist to protect the income of rich white men…(as they are a party that consists primarily of rich white men)…and to limit the rights of women.

    Not completely. They also are quite happy to protect the income of rich white women and colored people. In their hierarchy of attributes, rich overrides everything else.

  23. @stonetools: The Republican Party’s goal is to halt the government. Unfortunately they’ve been succeeding rather well.