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Friday, May 17, 2019

What's Roe got to do with it?

Andrew Sullivan praises Elizabeth Warren's proposals to codify Roe-level protections through federal legislation, because it allows for a political debate and political compromise that Roe preempted. He also blames Roe for the "batch of truly extreme bills in red states outlawing" abortion, which are designed to gin up a Supreme Court case that, with Brett Kavanaugh on the Court, will overrule Roe and the constitutional right to reproductive choice. But neither premise makes sense.

Sullivan's argument seems to be that because public opinion has remained relatively static on abortion since 1973, that legislators would not enact such extreme laws that are bound to be unpopular. But that makes no sense.  Alabama did not enact this law to challenge Roe for the sake of challenging Roe. It enacted this law because officials want to stop women from having abortions in Alabama. Once Roe is overruled, this remains the law in Alabama; there is no reason to believe that the Alabama legislature, having had its law declared constitutionally valid and enforceable, will say "oh, let's find a compromise." This will be the law in Alabama and the governor will set about enforcing it with glee. And nothing about Alabama's political alignment suggests Republican officials would pay any sort of political price for these laws. Same with Georgia, Missouri, and other states following on this course.

Roe was decided in a world in which abortion was illegal in many states. Without Roe, many of those bans would have remained in place. Or, as some states liberalized reproductive choice (which was happening in the years prior to Roe), other states (likely the states that are in the news now) would have enacted the laws that they are enacting or seeking to enact now. Contra Sullivan, it seems as likely that, without Roe, we would have gotten where we are (or where we are headed), but would have gotten here 40 years ago.

I also wonder about the constitutional validity of Warren's proposals under current doctrine and given the current Court (putting aside that it would not pass).

In her Medium piece, Warren calls for federal legislation that would: 1) Prohibit states from interfering in the ability of a health care provider to provide medical care or from interfering in the ability of a patient to access medical care from a provider; 2) Preempt TRAP laws; 3) Guarantee reproductive-health coverage in health plans, including repealing the Hyde Amendment; and 4) general protections for women, in seeking care and elsewhere (such as at work).

Is this valid federal legislation and under what power? Not § 5. Without Roe, Due Process does not protect reproductive freedom, so a law designed to protect that freedom by prohibiting state-level bans would not be congruent and proportional as to constitute legislation "enforcing" the 14th Amendment. Perhaps it could be framed as a gender-equality provision, enforcing the equal protection rights of women. But is halting abortion discrimination against women or is it halting a particular medical procedure that happens to have a disparate effect on women? And if the latter, is a disparate-impact provision congruent-and-proportional to a constitutional right that only prohibits disparate treatment?

So the power source would have to be the Commerce Clause. But a law doing what Warren proposes would interfere with the traditional state function of regulating the medical profession, the doctor-patient relationship, the insurance industry, and local zoning. Might the same five Justices conclude that there is not a sufficient nexus to interstate commerce to allow federal law to supersede state law in this area of historic state power?

I welcome thoughts on these questions--not being a Commerce Clause scholar, I do not know the answer. But pinning this on Roe, or suggesting that the anti-choice craze that has taken hold in these states is simply a reaction to Roe, seems wrong.

Posted by Howard Wasserman on May 17, 2019 at 06:17 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

I think if you gave a Chinese immigrant student an English Proficiency Test that asked them to define the power to regulate interstate commerce and they said that it was the power to guarantee and protect the freedom to have an abortion, you would have to give them an A+.

And I think that's all the evidence you need that the power to regulate interstate commerce definitively includes the power to guarantee and protect individual rights and freedoms.

Posted by: Mao | May 18, 2019 10:56:34 AM

That's an interesting Commerce Clause question.

If the commerce clause includes a parental right to choose an abortion, does it also include the parental right not to have your kid bused across town, or better yet, the parental right to send your kid to a private school with a voucher.

Surely the commerce clause doesn't only include the right to an abortion, but also includes other parental rights like school choice.

Surely needing fewer school buses, and thereby being less reliant on mid-east gasoline, affects interstate commerce.

Posted by: Netan-yahoo | May 18, 2019 8:52:32 AM

"to codify Parents-Involved-level protections through federal legislation, because it allows for a political debate and political compromise that Heller preempted"

Democrats have always said they believe in precedent above all else (see Breyer's dissent in Hyatt), so I think they'd be willing to federalize parents' rights to send their kids to local suburban high schools to make sure that a future supreme court doesn't revert back to forced busing.

I think if democrats want abortion rights, than the least they can do is give us school choice with school vouchers and outlaw race-based school admissions or race-based school-assignments (forced busing).

Posted by: Seattle Scholar | May 18, 2019 8:29:21 AM

"to codify Heller-level protections through federal legislation, because it allows for a political debate and political compromise that Heller preempted"

I think the democrats would go for this. The democrats claim that they don't want to limit firearm-sales or firearm-ownership or concealed-carry in public, but only want to keep firearms out of the hands of criminals. So I think they'd be willing to pass legislation protecting the individual civilian right to keep and bear arms for self-defense on the street.

And in exchange, we'd pass one protecting the freedom to have an abortion at any time for any reason without parental-notification or parental-approval.

Posted by: Elizabeth Warren Burger | May 18, 2019 6:08:17 AM

If it would pass, so would a bill to Court pack, no?

Posted by: Guha Krishnamurthi | May 18, 2019 1:34:05 AM

And Just to quote from Roe:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest
in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related
to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

He who wants,can reach Roe here:


https://cdn.loc.gov/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf

Thanks

Posted by: El roam | May 17, 2019 8:12:36 PM

Just to quote her:

Congress should do its job and protect their constituents from these efforts by establishing affirmative, statutory rights that parallel Roe vs. Wade. These rights would have at least two key components. First, they must prohibit states from interfering in the ability of a health care provider to provide medical care, including abortion services. Second, they must prohibit states from interfering in the ability of a patient to access medical care, including abortion services, from a provider that offers them.

End of quotation:

So we read: " establishing affirmative,statutory rights that parallel Roe....."

and:

"they must prohibit states from interfering in the ability of a patient to access medical care, including abortion services, from a provider that offers them"

Thanks

Posted by: El roam | May 17, 2019 8:00:50 PM

Interesting and important. But what Warren suggests, has to do with Roe. Definitely so ( although, hard to see, how interstate commerce is related right now ):

It is very simple. The Supreme court, had to make an inference in that case, concluding from the Fourteenth amendment, that a woman, has the right for her body ( integrity, autonomy and so forth ). On the other hand, the state might have interest in the life of the unborn baby. So, the Supreme court, has stricken a balance between them both ( First trimester v. the rest generally speaking).

What she wants to do, is to strike new balance, or no balance at all : All along the way, one woman has the right whatsoever on her body, all by a Federal statute,enhancing and fixing what has been decided in Roe.

So, in sum, she wants to make it explicit and conclusive, all along the way, this is precisely because:

The constitution is silent concerning abortions, but, concluding it from the Fourteenth amendment, and even so, it is by striking balance, she want to re - strike that balance, in one way,and on the highway.

Whether one may agree or not,it has definitely to do with Roe.

Thanks

Posted by: El roam | May 17, 2019 7:50:51 PM

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