Congress has previously considered significant abortion legislation, and adopted a few significant abortion-related bills. Among those bills, there have been ones finding that human life begins at conception and that conceived humans are persons under the Constitution, and others have been proposed limiting the jurisdiction of federal trial and appellate courts to hear challenges to state laws imposing restrictions on abortion. Those proposed bills never passed Congress.
Congress has also entertained the possibility of propounding constitutional amendments to the States on the topic. No amendment has passed out from the Congress to the States for ratification.
That Congress could act to restrict, to restrain, to reduce, abortion funding, international abortion services, and the like, is obvious. The Hyde Amendment, for example, has been part of federal law for nearly four decades, and prevents Medicaid funding of most abortions. In addition to the Hyde Amendment funding restriction, Congress also imposed a restriction on abortion referrals by contractors participating in Title X Family Planning programs.
Congress has also imposed a restriction on the barbaric "intact dilation and extraction" abortion, the so called "partial birth abortion." That ban survived constitutional scrutiny when the Supreme Court considered challenges to it in Gonzales v. Carhart.
Now, with Roe having remained a viable decision of the Court for four decades, we might be inclined to forget that killing children before birth has not always been legal in the United States. Harry Blackmun's phony history of abortion regulation, painfully misstated in Roe v. Wade notwithstanding, abortion always was a criminal enterprise in the United States. When the colonies declared their independence from Britain, they immediately adopted English Common Law as the rule of decision for such matters. In turn, at least since the publication of the Fleet Street Commentaries on the Law, around the end of the thirteen century, English Common Law treated abortions performed after "quickening" as felonies. (In fact, in the Christian West, since the time of the Apostles, abortion was always taught to be a moral wrong; in the Didache, or the Teaching of the Twelve, the teaching is precise: "you shall not murder a child by abortion nor kill that which is born").
Once the States began enacting statute law to modify the English Common Law, they simply transformed the criminal prohibition of abortion from the common law framework to a statutory framework. Missouri, for example, which was admitted into the Union in 1821, included a criminal prohibition of abortion virtually immediately, with the Legislature's enactment of its first criminal code. States that had not adopted criminal codes prohibiting abortion continued to treat abortion under their common law as a crime until criminal abortion statutes were adopted.
It was not until Roe v. Wade that the Supreme Court usurped to the federal leviathan the power of the States to regulate the crime of abortion. Until then, there was no reasonable question but that the States had, when drafting and ratifying the Constitution, retained to themselves plenary power to enact criminal laws for the regulation of public health, safety and morals. In fact, until Roe v. Wade, it would have been thought, by legal theorists, a queer notion to ask by what right the States enacted a criminal code restriction on abortion. Indeed, until the newspeak of the radical abortion legalization movement dominated the Supreme Court, the odd notion would have been that Congress had power to regulate and criminalize conduct historically within the exclusive province of State regulation.
And that last, my friends, is the disconcerting rub of the PCUCPA. By what power, by what right, does Congress enact a criminal statute regulating conduct that, until Roe v. Wade, was certainly the sole prerogative of the States to regulate or to prohibit? If there are legitimate methods for the federal Congress to do so, those methods arise from specific powers granted to Congress in the Constitution. In the PCUCPA, the pre-ambulatory matter expressly states that Congress relies on its Commerce Clause power and its Enforcement Clause power. Section Five of the Fourteenth Amendment -- the Enforcement Clause -- expressly grants to Congress the power to enforce the provisions of the Amendment.
Historically, Congress has employed its Commerce Clause power in certain cases of clear interstate criminal activity. The Mann Act prohibits interstate transportation for the purposes of prostitution. Such a restriction states clearly the connection between the harm to be addressed and the power of Congress to address it. The harm Congress addressed in the Mann Act was transporting women across State lines to put them to work as prostitutes in the early 20th Century American sex trade.
The PCUCPA, other than the assertion in its preamble that Congress relies on its Commerce Clause power, does not use language typical of enactments that depend on a nexus with interstate commerce sufficient to justify a federal legislative solution.
Consider, for example, the Religious Land Use and Institutionalized Persons Act of 2000. Following the Supreme Court’s decision striking down a provision of an earlier Act, the Religious Freedom Restoration Act, that created a cause of action against States and localities in certain cases arising from conflicts from demands of government inconsistent with private religious duty, Congress passed, and President Clinton signed RLUIPA into law. To anchor this new law to a clearly permissible base of power, Congress rested its authority on the Spending Clause and the Commerce Clause. In each case, Congress used language quite typical to such exercises.
Here is the relevant portion of RLUIPA:
Title 42 USC § 2000cc—Religious Land Use and Institutionalized Persons Act(a) SUBSTANTIAL BURDENS.—
(1) GENERAL RULE.—No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) SCOPE OF APPLICATION.—This subsection applies in any case in which—
(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
Notice the language underlined in paragraph (a)(2)(A)?(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.
That language ties the statutory duty to federal funding. It is typical of exercises of the Spending Clause. The notion is probably familiar to you. You may recall a time when the legal drinking age in virtually every State was 18 years of age. Congress tied receipt of federal funds to a raised drinking age of 21 and virtually every State followed along. In like vein, when the campaign to reduce highway driving speeds to 55 miles per hour needed an assist, Congress tied receipt of federal highway funds to the enactment of a State maximum speed limit of 55 miles per hour, and again, the States went along.
No violation of State sovereignty prohibited by the Constitution occurs when Congress entices States to adopt laws by offering funding or other benefits; these are not cases of the carrot and the stick, but of the carrot being offered to entice desired behavior from the 50 “horses.”
Now, notice the language italicized language in paragraph (a)(2)(B)?
That language ties the statutory duty to interstate commerce. That kind of language insures that Congress is not overreaching when it acts under the Commerce Clause. It is the typical and usual language in such cases.
As passed by the House, however, the PCUCPA does not, for example, limit itself to those abortions in, or affecting, interstate commerce. Such language is more than typical, it is a significant precursor to any judicial evaluation of whether the PCUCPA can survive scrutiny as an exercise of the Commerce Power. Merely asserting that a power of Congress justifies a particular statute does not resolve the question. If the PCUCPA is to survive such scrutiny, then this bill need substantial buttressing in the form of more formal language regarding the nexus to interstate commerce powers of Congress.
I doubt, as well, that a claim that the PCUCPA is an exercise of the Enforcement Clause power of Congress under the Fourteenth Amendment. The Fourteenth Amendment, in Section Five, grants to Congress the power to enact legislation enforcing the Amendment:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.If the PCUCPA advances in Congress, questions will arise about the basis on which Congress acts. In fact, those questions are already being raised. Professor Jonathan Adler, of Case Western Reserve University School of Law, tweeted:
“Q for conservatives upset about pulling of abortion bill: Where's the enumerated power that lets Congress do such a thing?”While that puts the question rather broadly, rather than providing a tight focus on Congress’ Enforcement Clause power, it does show that some are keeping their eye on the ball, even if it is not yet clear which power, enumerated or imagined, upon which the PCUCPA may be enacted.
Questions related to the Enforcement Clause basis for the PCUCPA cannot be gainsaid, ignored, or whistled past as though such questions were the tombstones of a cemetery on moonless night. Particularly where the Congress so seldom addresses the problem of legalized abortion, we should have a reasoned discussion on such questions as whether the PCUCPA constitutes an exercise of the Congress' Section 5 power, whether that exercise is a legitimate one, and whether the Supreme Court would sustain the Act in a challenge to its constitutionality.
For my part, having given the questions some thought, and the law related to them some consideration, I am not convinced that the PCUCPA constitutes a legitimate exercise of the Enforcement Clause power. At least, I am fairly convinced that the Supreme Court will not, without a sea change, hold that the PCUCPA is a constitutionally valid exercise of that power.
We are not without guidance from the Supreme Court regarding its views on legitimacy of Congress’ invocation of the Enforcement Clause power.When the Religious Freedom Restoration Act came before the Supreme Court, the Court examined the claim that Congress exercised its Enforcement Clause powers in enacting RFRA. Under RFRA, Congress imposed on both the federal government and the States certain duties when confronted with claims that government action imposed a substantial burden on the exercise of religion. In City of Boerne v. Flores, the Supreme Court considered a Texas city’s argument that Congress had overreached when it imposed such duties on States and localities as an exercise of its Enforcement Clause power.
The Supreme Court has used a fairly straightforward explanation of when Congress has properly invoked its Enforcement Clause power. Because of the language of Section Five, the Court evaluates Congressional actions to discern whether its actions are remedial in nature – curing past wrongs – or whether they are substantive in nature – creating new rights or obligations not previously embodied in law. To clarify, a doctor gives you antibiotics to cure or remedy a bacterial infection; she gives you a vaccination to prevent a new or different infection.
In City of Boerne, the answer to the question whether the duty Congress imposed on States and localities was remedial or substantive ultimately came down to Justice Kennedy’s conclusion that RFRA created a new statutory legal obligation for States and localities and granted a new, statutory cause of action or defense to religious claimants. For that reason, the Court concluded that RFRA constituted a substantive enactment was beyond the scope of the Enforcement Clause power of Congress. Here is the central passage on this point:
Regardless of the state of the legislative record, RFRA cannot be considered remedial, preventive legislation, if those terms are to have any meaning. RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.To fully grasp why RFRA’s application to the States worked a “substantive change in constitutional protections,” it must be remembered that RFRA was, itself, an effort by Congress to undo the harms it associated with a prior Supreme Court decision. America’s religious communities and many religious liberties experts viewed that decision, Employment Division v. Smith, as having struck a terrible blow against religious freedom, making a nullity of the Free Exercise Clause.
Smith addressed unemployment compensation claims by two drug counselors dismissed from private employment when it was learned that they used peyote as part of Native American religious rituals. Earlier Supreme Court cases had provided a more genial construction of the Free Exercise Clause, under which the denial of such benefits would be subject to a severe form of constitutional review usually associated with rejection of the State’s position. In Smith, however, Justice Scalia set out a greatly narrowed interpretation of the Clause and of the Court’s own prior cases, leaving the unemployed drug counselors high and dry as to their compensation claims.
Three years after Smith, Congress responded by enacting RFRA. President Clinton signed RFRA into law. RFRA bound the federal government and the States to the pre-Smith law and decisions, essentially rejecting the Court’s decision there. RFRA, in fact, created a statutory cause of action that had not previously existed as a means of vindicating religious freedom rights against the federal government, States and localities. It was the application of RFRA to the States that the Court found to be an overreach, based on its conclusion that it was a substantive enactment, rather than a remedial one.
Turning back to the PCUCPA, the questions asked in City of Boerne about RFRA must be asked about the House’s bill. Is it merely remedial? Or, does it create a new substantive right.
To ask the question is to answer it.
The Supreme Court has stuck fastidiously to its “central holding in Roe.” Justices O’Connor, Kennedy and Souter summarized that central holding this way:
It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.If the PCUCPA is to be sustained by the Supreme Court, and if the Court will sift the Act and its purposes for a basis in the Enforcement Clause power of Congress, then the Court will, unless it abandons Planned Parenthood v. Casey (a development that I would welcome), evaluate the PCUCPA in light of Roe’s central holding. If it does, the Court will confront the contentious dispute over viability.
Viability at 22 weeks, with appropriate medical treatment, was noted in a recent study covered by the New York Times here. (Lower federal courts continue to follow Casey and its Roe centrality reasoning. On May 27, 2015, the US Court of Appeals for the Eighth Circuit agreed with a federal trial court that a ban on abortions later than 12 weeks gestation violated Casey’s viability of the fetus holding. In fact, on May 29, the Ninth Circuit Court of Appeals issued a decision affirming a trial court injunction preventing enforcement of an Idaho statute banning most abortions after 20 weeks. That statute, as with the one we are examining, was a Pain-Capable Unborn Child Protection Act.)
If the Court does as its own cases and history teaches us it will, then the Court is not likely to agree that Congress – by adopting the 20 week framework – is adhering to Roe’s central holding as to viability. On that basis alone, the Court would likely find the PCUCPA an overreach. To do otherwise would be to blink at Congress making a close judgment call on viability in an area of the law where the Court has acted the jealous guardian of the essential holdings of Roe.
More to the point, why does Congress think that we should engage in tangential maneuvering? Why make this about the possibility -- the reality -- that when white coated technicians with medical licenses hack limbs, sever heads, disembowel abdomens, there is not merely sensation, but the inexplicable unbearable overwhelming pain of the Freddy Krueger-ed to death by a State-licensed physician. Why, if this is about the Enforcement of the rights of equal protection and due process of fetal children, why not squarely set the question. Let's not be the kind of dishonest brokers of our ideas that too often have been the voice of abortion support at the Supreme Court and in the Congress. If Congress contends that this is an effort to provide a remedial solution to a problem experienced by fetal children in equal protection and in their rights, we should straight up declare that fetal children are persons under the Constitution, and that, as persons, they are entitled to this remedial action by Congress.
While the Act, if it were to become law, would be a welcome stopgap provision of law in respect of its protection for one class of fetal children, it could no more be sufficient as a complete solution than could a different Thirteenth Amendment, one that prohibited slavery only among those Africans aged 30 or older. Our history as a People tells us that what is needed to rebuke an error of Supreme proportions is more than stopgaps.
