Federal Power to Regulate Abortion

Two weeks ago, Senator Lindsey Graham (R-Dumkoff) introduced legislation celebrated by leftists and the media—but I repeat myself—that would establish a nationwide right to abortion up to 15 weeks into pregnancy.  Graham won plaudits—from Democrats.  Yet, the bill has no chance of passing.  Still, were it to become law, would it be Constitutional?  

I don’t analyze the issue as a “right-to-lifer” or a Christian.  Rather, I consider only Constitutional Originalism, the reason I opposed the Roe and Casey decisions—neither were supported by the Constitution.  That document is a relatively immutable division of labor between nearly unlimited state sovereigns, and the powers those states delegated to the central government:

The Constitution enumerates specific powers and duties lawfully exercised by Washington—and allocates the rest elsewhere:  “any powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people.”  Amendment 10. 

The Dobbs decision, of course, followed exactly that approach.  It overturned Roe and Casey, finding no abortion right in the U.S. Constitution.  

The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “un-born human being.” . . .

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand. 

Dobbs, Slip Op. at 5, 6.

So if abortion qua abortion is not within Federal powers, upon what authority could Congress pin this Graham bill?   The sole answer must lay in Art. I, Sec. 8, which sets forth Congress’s powers.  And in that Section, only two clauses could be relevant:  the Commerce Clause (Clause 3) and the Necessary and Proper Clause (clause 18).  

The Commerce Clause originally had been read expansively—most famously in Wickard v. Fillburn, 317 U.S. 111 (1942), upholding Federal regulation of wheat planted and consumed solely on the farm, never crossing intestate lines.  Yet the current court views the same provision more narrowly.  In upholding the Affordable Care Act, for example, five Justices (separately) found the law violated both the Commerce and Necessary and Proper Clauses.  Nat’l Fed. of Ins. Bus. v. Sebelius, 567, U.S. 519, 558-61, 649-55 (2012) (Roberts, C.J. Majority Opinion; Kennedy Dissent).  One suspects something Wickard this way goes. 

Early interpretations of “Necessary & Proper” read it as providing essentially stand-alone legislative authority, see McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (“If the end be legitimate and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted [to] that end, and which are not prohibited, may constitutionally be employed to carry it into effect.”).  More recent jurisprudence, however, tries to tie the legislative action to an explicit Congressional power, with “Necessary and Proper” often the backstop to enforceability.  The U.S. Criminal Code, for example, could not apply except on Federal lands—except that Supreme Court upheld it as “Necessary and Proper” to other explicit powers.  United States v. Comstock, 560 U.S. 126 (2010) (“[Since McCulloch, we have] made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”) (emphasis added).

Most relevant here, the “Necessary and Proper” clause cannot override the Federalism inherent in the Constitution:

Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment. The Tenth Amendment likewise restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which, as we have discussed, is essentially a tautology. Instead, the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power.

New York v. United States, 505 U.S. 144, 156-57 (1992) (emphasis added).

In overturning Roe and Casey, Dobbs clarified beyond cavil the lack of Federal authority over abortion; “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”  Dobbs, Slip Op. at 79.  That paraphrase of the 10th Amendment was no accident—state legislators are the sole “elected representatives” with law-making jurisdiction.

In sum, only those who believe in a “Gumby Constitution” plausibly can claim this bill, even were it to pass, could survive judicial review.

Beyond that, I wonder if liberals actually read Senator Graham’s bill.  Because it’s possible, though not certain, as they say in SF movies, “It’s a trap!”  Section 3 of the bill would codify a 15 week federal abortion right, with exceptions for rape, incest, or the life of the mother.  But the slightly longer Section 2 makes legislative findings seemingly lifted from right-to-life literature:

“(1) Medical and other authorities now know more about human prenatal development than ever before, including that—

(A) an unborn child first moves about in the womb and first reacts to touch at approxi- mately 8 weeks gestation;

(B) the eyes begin to form at 5 weeks ges- tation and finish forming by 10 weeks gestation;

(C) eye movements can be detected by ultrasound at 12 weeks gestation;

(D) by 8 to 9 weeks gestation, an unborn child has detectable brain waves;

(E) at 9 weeks gestation—

(i) an unborn child’s diaphragm is developing, and he or she may even hiccup; and

(ii) an unborn child is beginning to move about freely in the womb;

(F) by 9 to 11 weeks gestation, teeth as well as external genitalia begin to form; 

(G) by 10 weeks gestation—

(i) all of an unborn child’s organ rudiments are formed and in place 

ii) the digestive system and kidneys start to function; and

(iii) an unborn child will show a preference for either right-handedness or left handedness; and [sic]

(H) at 12 weeks gestation—

(i) an unborn child can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb; and

(ii) fingernails and fingerprints begin to form.

(2) The Supreme Court of the United States has acknowledged that, by at least 12 weeks gestation, an unborn child has taken on ‘‘the human form’’ in all relevant aspects. Gonzales v. Carhart, 550 U.S. 124, 160 (2007) [Partial Birth Abortion case; see analysis here].

(3) Pain receptors (also known as ‘‘nociceptors’’) begin forming at 7 weeks gestational age. Nerves linking these pain receptors to the brain’s thalamus and subcortical plate form between 12 and 20 weeks gestational age. At no later than 16 weeks gestational age, the first contact occurs between the subcortical plate and these forming fibers.

4) In considering the use of anesthesia for invasive medical procedures performed on the fetus, doctors have concluded, based on the evidence, that from as early as 12 weeks gestational age, and certainly by 15 weeks gestational age, the fetus is extremely sensitive to painful stimuli, making it necessary to apply adequate analgesia and anesthesia to prevent fetal suffering.

(5) Substantial evidence indicates that neural elements, such as the thalamus and subcortical plate, which develop at specific times during the early development of an unborn child, serve as pain-processing structures, and are different from the neural elements used for pain processing by adults. Recent evidence, particularly since 2016, demonstrates that structures responsible for pain show signs of sufficient maturation beginning at 15 week of gestation.

(6) In an unborn child, application of painful stimuli is associated with significant increases in stress hormones known as the stress response.

(7) Subjection to painful stimuli is associated with long-term harmful neurodevelopment effects, such as altered pain sensitivity and, possibly, emotional, behavioral, and learning disabilities later in life.

(8) For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without such anesthesia.

(9) The assertion by some medical experts that an unborn child is incapable of experiencing pain until a point in pregnancy later than 24 weeks gestational age predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provide strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

(10) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, such as those with hydranencephaly, nevertheless experience pain.

(11) In adult humans and in animals, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.

(12) The assertion of some medical experts that an unborn child remains in a coma-like sleep state that precludes an unborn child from experiencing pain is inconsistent with the documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons who have found it necessary to sedate an unborn child with anesthesia and provide analgesia to prevent an unborn child from engaging in vigorous movement in reaction to invasive surgery.

13) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 15 weeks gestational age, if not earlier.

(14) Abortion carries significant physical and psychological risks to the pregnant woman, and these physical and psychological risks increase with gestational age.

(15) The majority of abortion procedures performed after 15 weeks gestation are dismemberment abortion procedures which involve the use of surgical instruments to crush and tear an unborn child apart before removing the pieces of the dead child from the womb.

(16) Medical complications from dismemberment abortions include pelvic infection, incomplete abortions (retained tissue), blood clots, heavy bleeding or hemorrhage, laceration, tear, or other injury to the cervix, puncture, laceration, tear, or other injury to the uterus, injury to the bowel or bladder, depression, anxiety, substance abuse, and other emotional or psychological problems. Further, in abortions performed after 15 weeks gestation, there is a higher risk of requiring a hysterectomy, other reparative surgery, or a blood transfusion.

(17) In subparagraphs (J) and (K) of section 2 of the Partial-Birth Abortion Ban Act of 2003 (Public Law 108–105; 117 Stat. 1201), Congress found and declared that late-term abortion, such as a dismemberment abortion, ‘‘confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child’’ and ‘‘undermines the public’s perception of the appropriate role of a physician’’.”

Do pro-abortion people actually want such findings in Federal law?  Especially in a law that has no chance of surviving?  Even if the 15 week abortion ban is struck by a court, would the Section 2 findings be “severable” and remain in the U.S. Code?  I do not believe so—but wonder why pro-abortion groups would take that risk.